Crocker Nat Bank v. Pagenstecher
| Decision Date | 08 October 1890 |
| Parties | CROCKER NAT. BANK v. PAGENSTECHER et al. |
| Court | U.S. District Court — District of Massachusetts |
William Gaston and Frederick E. Snow, for plaintiff.
Louis D. Brandeis, for defendants.
This is a motion to dismiss the action for want of jurisdiction. The action was brought in the superior court of the state of Massachusetts on January 7, 1890, and the writ was served by foreign attachment, the sheriff returning that he was not able to find the defendants. On the return of the writ notice of the pendency of the action was given by publication in a newspaper, pursuant to the statute of Massachusetts and to an order made in that behalf by the superior court. The action was then, on petition of the defendants, removed into this court, and the defendants file this motion to dismiss for the reason--
'That at the time of the issuance of the writ and the commencement of proceedings herein the defendants were not inhabitants residents, or citizens of the state or district of Massachusetts, but then were, and for a long time previous had been, and now are, residents, inhabitants, and citizens of New York; and that the defendants, or either of them, were not found within the state or district of Massachusetts, and no service of the writ or original process in this suit ever was, or ever has been, made upon them, or either of them, as appears by the return of the deputy-sheriff on the writ in this cause.'
The argument of the defendants is that the court has no jurisdiction, under the provisions of the statute, (St. 1887 c. 373, Sec. 1; 24 St. 552; and St. 1888, c. 866, Sec. 1; 25 St. 433,) for the reasons,-- First, that the defendants are not residents of the district of Massachusetts, and, secondly, that no personal service of process has been made upon them. For the support of the proposition that the courts of the United States can in no case have jurisdiction of any action in which there is not personal service they rely on the decision of Judge COLT, in Perkins v. Hendryx, 40 Fed.Rep.
657. It is, I suppose, clear that the judgment in that case could not have been rendered without finding or assuming that, as is briefly and broadly said in the opinion, the courts of the United States cannot in any case have 'jurisdiction in suits founded on foreign attachment, and without personal service of process. ' But it is to be observed in the first place that the cases quoted...
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