A 46 · i FEDERAL nnroarns. 1 ‘
` whenfhe pleads to the merits in -the firstinstance, without insisting
upon the illegality, that the! objection is deemed to be waived."
The variousmatters relied 'on to show that the American Bell Tel-
ephone~Company is to be found ~in¥ Ohio, and subject to the jurisdic-
tion of this court,-—such* as its ownership of the telephone instru ments
used by the licensee corporations; the ownership of stock in one or.
more ofthe local companies; t-he rights and powers reserved to it of `
resuming possession of its telephone instruments, and taking control
of thetelephone business, in the event of default on the part of the
licensee corporations in complyingwith the provisions of the license
contrapts; the sharing in the gross receipts of certainportions of the
’ businessdone; the reservation of rents and royalties; the right to
make changes; and the restrictions and limitations imposed upon
the licensee companies,-neither singly nor in the aggregate establish
‘ the twocasential facts necessary to bring the American Bell Telephone
Company within the power and jurisdiction of this court, viz., that
said ·corporation·is now, orwas at the-commencementof this suit,
carrying on its business in the state of Ohio, and that it had a "man-
aging agent" or agents representing it here. The truth of the plea
being assume‘d,*the only relation- existing between the American Bell
Telephone company and the local corporations is really and technic-
ally that of lessor and lessee, licenser and licensee; the Bell Tele-
phone Company being merely the lessor of thetelephone instruments,
and the licensor ofthe right to use»the· patent embodied therein, on
certain terms, as to rents and royalties and otherwise, agreed upon
between theparties, the contracts being entered into; not inOhio, but
at Boston, Massachusetts. . ‘ A- ~ ’ i ~ ·
Our conclusion, therefore, is that both the motion of the American
Bell Telep·honeCompany, so vfarias sit raises objection to the legal
sufficiency of thereturns herein, upon their face, and its plea in
abatement~to:th“e=j11risdiction of the court over it, be sustained; that
said returns be quashed, and the alleged service on said defendant
beabated, 1. The plea being isustained, and availing the American
Bell Telephone Company "so far -as in law andequity it ought to
avail, " it disposes of the case so far as said corporation is concerned.
The bill is accordingly dismissed-aslto said American Bell Telephone
Companyfor want of jurisdiction over it, but without prejudice to
the complainants. Whetherthecase can proceed without said cor-
, poration and Alexander Graham Bell being before the court as ma-
terial and essential parties it isinotnecessary now to decide.
Judges WELEEB and Saou, who sat with the circuit judge on the
hearingrofsaidmotion and plealirr abatement, concur inthe reason-
» ingand conclusion of this opinions i ~ ’ ·. ’
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