J
UNITED STATES iv. AMERICAN BELL TELEPHOIQE CO. 17
Unrrrzn Smrns v. AMERICAN Bam. Tnnnrnoun Co. and others.'
(Circuit Ogwrt, S. D. Ohio, E. D. November, 1886.)
1. Wmr AND Pnocmss—Mo·rroN ro QUASH Snnvrcn. ‘
Where the invalidity, irregularity, or defect in the service of the writ ap=
pears upon the face of the return, a motion to quash the service, or abate the
writ, is the proper mode of bringing the matter to the attention of the court;
but, where the objection does not appear upon the face of the papers, the
better rule of practice, where it is sought to question or dispute the facts
stated therein, is to do so by plea. in abatement, on which an issue may be reg-
ularly taken and tried.
2. PA'B'l‘NEBBHIP·—SERVICE UPON Non-Rnsrnnrvr PARTNER. · _
I While the interest of a nonresident partner in a partnership doing business
in Ohio, in respect to such business, may be subject to the local jurisdiction,
if the partnership is properly served in conformity with the statutes of the
state, rtis, however, well settled that the non-resident partner cannot be
brought personally before even the local courts, or be subjected to judgment
in persmmm, by service upon the resident partners.
é` Wmr AND Pno0nss—Equ1rY PnAcrrcm—Snnvrcn or Sum·o=mA.
In suits in equity, the federal courts are regulated, not by state statutes, but
by the judiciary acts, and the rules of equity practice. ‘
4. SA1IE—AMERICAN BELL Tnnnrnonm Co1urANr.
The return of a subpoena which recited that the marshal had served the
A . same upon the "American Bell Telephone Company (which is a corporation
found and doing business in the Southern district of Ohio) by reading the
same to A. D. Bullock, the president of the City and Suburban Telegraph Com-
pany, (the said City and Suburban Telegraph Company being an agent and
partner of the said the American Bell Telephone Company, within said dis-
trict,)" fails to show affirmatively the facts required to constitute avalid serv-
ice, either under the judiciary acts, the rules of practice governing the court,
or the statute of Ohio providing for service upon a foreign corporation having
a “mimcging agent" in the state. No presumptions are to be indulged in favor
of such a return, so as to give the court jurisdiction over a non-resident cor-
poration. The return is also irregular, and open to the objection that the
marshal did not confine himself to a statement of what he id in executing
She subpoenas, but states conclusions of law and fact, apart from what was
one.
6. SAME—SERVICE uPON FOREIGN CORPORATIONS.
In the absence of a voluntary ap earance, three conditions must concur or
` co-exist in order to give the fe eralcourts jurisdiction in persemam over a cor-
poration created without the territorial limits of the state in which the court
IS held, viz.: (1) It must appear, as a matter of fact, that the corporation is
carrying on its business in such foreign stateor district; (2) that such busi-
ness is transacted or managed by some agent or oiflcer appointed by and rep-
resenting the corporation in such state; and (3) the existence of some local
law making such corporation. or foreign corporations generally, amenable to
suit there as a condition express or implied of doing business in the state.
6. SAun—Sno·rroN 739, Rnv. Sr. U. S.—Ac·r or Cononnss, MARCH 3. 1875.
The judiciary acts (Rev. St. § 739) and act of March 3, 1875, providing that no
civil suit or action shall be brought against any person outside of the district
in which he resides or may be found at the time of the service of process, do
not affect the general jurisdiction of this court, but merely confer a personal
privilege or exemption upon the defendant, which can be waived, and is
waived, by a foreign corporation, not only by a voluntary ap earance to the
suit, but by doing business in a state imposing the condition of) liability to suit
there by service of process on its agent.
7. SAME——SEBVICE uron Fonmren Conronnron.
· It is not suflicient to give this court jurisdiction in pcraonam over a foreign
corporation that it has property rights, however extensive, within the district,
or that it has pecuniary interests, however valuable, in business managed and
conducted by others.
llleported by J'. C. Harper, Esq., of the Cincinnati bar.
‘ ‘ v.29r*.no.1—2 ·