Company v. James Norris, Son Company

• Decision Date: 29 April 1912
• Docket Number: HERNDON-CARTER,No. 923,923
• Citation: 32 S.Ct. 550,56 L.Ed. 857,224 U.S. 496
• Parties: COMPANY, Appt., v. JAMES N. NORRIS, SON & COMPANY
• Court: U.S. Supreme Court

224 U.S. 496

32 S.Ct. 550

56 L.Ed. 857

HERNDON-CARTER COMPANY, Appt.,

v JAMES N. NORRIS, SON & COMPANY.

No. 923.

Submitted April 1, 1912.

Decided April 29, 1912.

Mr. Helm Bruce for appellant.

Messrs. John H. Chandler and William B. Fleming for appellee.

Mr. Justice Day delivered the opinion of the court:

In this case a suit was brought by the Herndon-Carter Company, a corporation of the state of Kentucky, against James N. Norris, Son & Company, a corporation of the state of New York. The bill of complaint sought an accounting and settlement of transactions between the parties, growing out of shipments of poultry from the Kentucky corporation to the New York Corporation, sold by the latter on commission. A subpoena was issued and served on March 10, 1911, upon James N. Norris, Son & Company by delivering a copy to W. J. Adams, as manager and chief agent, and the highest officer of the company in the district. The defendant company entered a special appearance, and filed an objection and plea to the jurisdiction, setting up that it was a corporation of the state of New York; that since December, 1904, it had not had any place of business in the state of Kentucky, and had not conducted any business in that state; that since that time it had had no agent in the state of Kentucky; and that W. J. Adams was not, at the time of the service of the writ, the manager and officer or agent of the defendant. The defendant averred further that for a little more than two years before the 1st of January, 1905, Adams was employed by it, and acted as its agent in Kentucky in the purchase and shipment of poultry and produce, but that, at the end of the year 1904, he severed his connection with defendant, and ceased to be its agent for any purpose whatever; that on January 1, 1905, Adams, James N. Norris, and William H. Norris formed a partnership, in which Adams had an one-half interest and James N Norris and William H. Norris each a one-quarter interest, and that since the 1st of January, 1905, the partnership had conducted the business of buyers and shippers of poultry, butter, and eggs in Louisville and other parts of Kentucky.

Upon testimony, to be hereinafter referred to, the circuit court heard the parties upon the issues made by the plea to the jurisdiction and replication thereto, and concluded that Adams was not the agent at the time of the attempted service upon him as such, and that James N. Norris, Son & Company was not then doing business in the state of Kentucky.

The case is brought directly here under § 5 of the circuit court of appeals act of March 3, 1891. [26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549.] It is evident from a statement of the question made that it only involves issues of fact as to whether the defendant company was doing business in Kentucky, and whether Adams was its agent at the time of the attempted service. It is well settled that a question of this character may be brought to this court by direct appeal under the circuit court of appeals act. Remington v. Central P. R. Co. 198 U. S. 95, 49 L. ed. 959, 25 Sup. Ct. Rep. 577; Commercial Mut. Acci. Co. v. Davis, 213 U. S. 245, 256, 53 L. ed. 782, 787, 29 Sup. Ct. Rep. 445; Mechanical Appliance Co. v. Castleman, 215 U. S. 437, 54 L. ed. 272, 30 Sup. Ct. Rep. 125.

The appellee objects that the statutory requirement that the question of jurisdiction only shall be certified to this court was not complied with, and therefore the case should be dismissed. The record, however, discloses that the case was dismissed for the want of jurisdiction, and for that reason only. Where the decree of dismissal is in such form, it is sufficient to take the place of a certificate, within the requirements of the act. Excelsior Wooden Pipe Co. v. Pacific Bridge Co. 185 U. S. 282, 46 L. ed. 910, 22 Sup. Ct. Rep. 681.

It is further objected that, if the decree could be held to take the place of a certificate, the present appeal was not taken at the term during which the case was decided and the decree of dismissal entered. The record shows that an appeal was taken to the circuit court of appeals from the decree of dismissal entered at the March term, 1911, of the circuit court. It was there dismissed, and at the October term, 1911, another appeal was allowed from the circuit court directly to this court. This court has held that the jurisdictional certificate must be issued during the term at which the question is decided. Colvin v. Jacksonville, 158 U. S. 456, 39 L. ed. 1053, 15 Sup. Ct. Rep. 866; The Bayonne, 159 U. S. 687, 40 L. ed. 306, 16 Sup. Ct. Rep. 185. It has also been held that the certificate being supplied by a decree in due form, showing dismissal for want of jurisdiction only, the appeal may be perfected subsequently, within two years, as are other appeals. Excelsior Wooden Pipe Co. v. Pacific Bridge Co. supra.

The appellee further contends that the record shows two decrees or orders,—an order quashing the service of summons, and, separately, a decree of dismissal for want of jurisdiction,—and this is said to be shown because the opinion of the court, sent up with the record, states the decision upon the question of quashing service of summons to have been first made. An inspection of the record shows but one final order or decree, which, at the same time, quashes the service of summons and dismisses the case for want of jurisdiction, and that is the decree appealed from, and which brings to this court the question of jurisdiction of the defendant.

It has frequently been held in this court that a foreign corporation, in order to be subject to the jurisdiction of a court, must be doing business within the state of the court's jurisdiction, and service must there be made upon some duly authorized officer or agent. St. Clair v. Cox, 106 U. S. 350, 27 L. ed. 222, 1 Sup. Ct. Rep. 354; Goldey v. Morning News, 156 U. S. 518, 39 L. ed. 517, 15 Sup. Ct. Rep. 559; Peterson v. Chicago, R. I. & P. R. Co. 205 U. S. 364, 51 L. ed. 841, 27 Sup. Ct. Rep. 513. We are therefore brought to review the correctness of the decision of the circuit court, holding that James N. Norris, Son & Company was not doing business in the state of Kentucky, and that Adams was not...