Unrrsn surss v. AMEm0AN BELL ·rnLEP1—1onm 00. 33
a valid service, either under the judiciary acts, the rules of practice
governing this court, or under the statute of Ohio relatingto service ,
on foreign corporations, which provides (Bev. St. § 5046) that "when
the defendant is a foreign corporation, having a managing agent in
this state, the service may be upon such agent." It is nowhere al-
leged in the bill that the local corporations, on whom or whose oilicers
service was had, were the·"managing agent" or "agents" of said Bell
Telephone Company. No presumptions are to be indulged in favor t
of such a return, so as to give the court jurisdiction over a non-resi-
dont corporation. Alexandria v. Fairfax, 95 U. S. 780; Grace v.
American Cent. Ins. O0., L09 U. S. 283; S. C. 3 Sup. Ct. Rep. 207.
The returns in question are furthermore irregular, and open to the
objection that the marshal has not conhned himself to a statement of
what he did in executing the subpoenas, but states conclusions of law
and fact apart from what was done, in reciting that the local cor-’
porations were partners and agents of the American Bell Telephone
Company} A
Our conclusion, therefore, is that, under the allegations of the bill,
the statements of the subpoenas, and the recitals of the returns, no
valid or legal personal or constructive service on the American Bell
Telephone Company is affirmatively shown, such as will require it to
appear and make defense herein, or suffer the consequences of a de-
fault; and that said companys motion to quash said service for de-
fects of insufficiency in law or illegality appearing on the face of the
returns should be sustained. A L
But this conclusion as to the insufficiency of the returns upon their
face will avail but little in finally disposing of the main question
to‘uching.the jurisdiction of the court over the American Bell Tele-
phone Company, as said returns may be amended upon proper mo-
tion, or new subpoenas could issue, if the facts disclosed in the plea of
abatement and exhibits thereto justify such an amendment or the is-
suance of further process. It becomes necessary, therefore, to con-
sider the questions raised and presented by the plea in abatement.
Under the thirty-third rule of equity practice, the complainants were at
liberty either to take issue on this plea or to " set it down for argument."
They have chosen to take the latter course, thereby precluding the
defendant from an opportunity of establishing its plea by proof, and
therebyadmitting, as absolutely true, all the statements of the plea,
however inconsistent with or contradictory of the allegations of the
bill, or the statements and recitals in the returns. The truth of the
plea being thus admitted by setting it down for argument, all facts
material and pertinent to the issue raised by it stand, and are to be
treated, as though established by proof, and, under the present rule
of practice, are to avail the defendant "so far as in law and equity
they ought to avail it."
The questions presented by the plea of abatement for the deter-
mination of the court are whether, assuming the facts stated in the
v.29F.no.1·-3