170 F.2d 684 (9th Cir. 1948), 11853, Arizona Barite Co. v. Western-Knapp Engineering Co.

Docket Nº:11853.
Citation:170 F.2d 684
Party Name:ARIZONE BARITE CO. v. WESTERN-KNAPP ENGINEERING CO.
Case Date:November 03, 1948
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 684

170 F.2d 684 (9th Cir. 1948)

ARIZONE BARITE CO.

v.

WESTERN-KNAPP ENGINEERING CO.

No. 11853.

United States Court of Appeals, Ninth Circuit.

November 3, 1948

Rehearing Denied Dec. 13, 1948.

Stockton & Karam and Fred J. Elliott, both of Phoenix, Ariz., and Fullbright, Crooker, Freeman & Bates, of Houston, Tex., for appellant.

Leslie Parry and Herbert Mallamo, both of Phoenix, Ariz., and Arthur P. Shapro and August B. Rothschild, both of San Francisco, Cal., for appellee.

Before MATHEWS and HEALY, Circuit Judges, and BLACK, District Judge.

MATHEWS, Circuit Judge.

On August 8, 1945, appellee, Western-Knapp Engineering Company, a California corporation, appointed J. P. Keller, a resident

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of Maricopa County, Arizona, as its statutory agent upon whom process might be served and filed the appointment with the Arizona Corporation Commission. Thereupon, on August 8, 1945, appellee was duly admitted and authorized to transact business in Arizona. 1 It did so until June 6, 1946. On June 6, 1946, it filed with the Corporation Commission what purported to be a revocation of the appointment of Keller as its statutory agent. It never appointed anyone in Keller's place. It transacted no business in Arizona after June 6, 1946.

On December 12, 1946, a certificate stating that appellee had elected to wind up and dissolve was filed with the Secretary of State of California. On January 3, 1947, a certificate stating that appellee had been completely wound up was filed with the Secretary. 2 Despite the filing of these certificates, hereafter called the winding-up certificates, appellee retained its corporate existence and some of its corporate powers, including the power to sue and be sued, and, when exercising such powers, acted by and through its directors (J. N. How, J. H. How and Clara How). 3

On April 28, 1947, appellant Arizona Barite Company, an Arizona corporation, brought an action against appellee in the Superior Court of Maricopa County, Arizona, for damages in the sum of $14, 566.98 alleged to have resulted from the breach of a contract which, according to the complaint, was made by appellant and appellee on August 9, 1945, was to be performed in Maricopa County breached by appellee in Maricopa County before June 6, 1946. Thus, according to the complaint, the claim or cause of action sued on arose in Maricopa County out of business transacted by appellee in Maricopa County after the appointment of Keller as its statutory agent and before the purported revocation of that appointment.

A summons was issued against appellee on April 28, 1947, and was served in Maricopa County by the sheriff thereof by delivering a copy of the summons and of the complaint to Keller as appellee's statutory agent on May 2, 1947. 4 On May 21, 1947, acting by and through its directors, appellee removed the action to the United States District Court for the District of Arizona. On June 24, 1947, acting by and through its directors, appellee moved the District Court for an order quashing the service of the summons issued on April 28, 1947. On October 6, 1947, the District Court entered an order granting the motion of June 24, 1947.

An additional summons was issued on November 13, 1947, and was served in the District of Arizona by the marshal thereof by depositing two copies of the summons and of the complaint in the office of the Corporation Commission on December 5, 1947. 5 On December 26, 1947, acting by and through its directors, appellee moved the District Court for an order quashing the service of the summons issued on November 13, 1947. On December 29, 1947, the District Court entered an order granting the motion of December 26, 1947. From the orders of October 6, 1947, and December 29, 1947...

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