Doherty v. McDowell
| Citation | 276 F. 728 |
| Decision Date | 01 December 1921 |
| Docket Number | 814. |
| Parties | DOHERTY et al. v. McDOWELL et al. |
| Court | U.S. District Court — District of Maine |
Frueauff Robinson & Sloan, of New York City, and Verrill, Hale, Booth & Ives, of Portland, Me., for plaintiffs.
Philip G. Clifford, of Portland, Me., for defendant Doherty Securities Co.
Thomas L. Talbot, of Portland, Me., specially, for defendants.
This case comes before the court upon defendants' motion to vacate the order of service and dismiss the bill, for the reason that the court has no jurisdiction over the defendants, because:
(1) A certified copy of the order of notice was not served on Horace H. McDowell.
(2) The Doherty Securities Company, one of the defendants, has no property in Maine. All its corporate business is transacted outside of Maine except the annual meeting of stockholders.
(3) All the certificates of stock of the Doherty Securities Company owned by the defendants are held and owned by them within the Western district of Pennsylvania and the Southern district of Texas.
Section 57 of the Judicial Code (Comp. St. Sec. 1039), provides among other things, that when a suit is commenced in a District Court of the United States to enforce any legal or equitable claim upon, or claim to, or to remove any lien or cloud upon the title to real or personal property within the district where the suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the district, or shall not voluntarily appear thereto it shall be lawful for the court to make an order directing the absent defendant to appear and plead, answer, or demur by a day certain, which order shall be served upon such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of such property. I have briefly stated that part of the section which is material to the consideration of the questions involved in this motion.
The plaintiff's bill is brought to establish a claim to and upon certain shares of stock of the Doherty Securities Company. The bill shows that the corporation is a Maine corporation; that the plaintiffs are residents of New York state; that the three individual defendants in whose name the shares are alleged to stand are residents of Pennsylvania and Texas; that the defendant Jesse C. McDowell was the agent and employe of the plaintiffs, and that it was part of his duty as such agent, to negotiate transactions for the purchase of property; that he took advantage of this to add large amounts to the alleged purchase price, and, having obtained from the plaintiffs payment of these large amounts, he had such payment turned over to himself. A specific case is alleged in the bill in detail, in which transaction McDowell is alleged to have obtained $250,000. There is another allegation that McDowell, during the term of his employment, defrauded the plaintiffs in the same way, receiving thereby a large amount of money; that the knowledge of these transactions was concealed from the plaintiffs, and that they were unable, at the time the bill was drawn, to describe them in detail. The bill further alleges that the specific shares of stock in the Doherty Securities Company were delivered by the plaintiffs to the defendant McDowell, as further consideration for his services, which at that time were supposed to be in good faith, loyal, honest, and faithful; and that, having since learned that, instead of having rendered such services, he had defrauded them, they now claim that the title to the specific shares of stock set out in the bill never passed to McDowell, and that he got possession of them by fraud; the equitable title still remaining in the plaintiffs, who are entitled to a return of this property which McDowell had obtained by fraud. Their claim, then, is substantially a proceeding in rem against the property, namely, against the shares of stock to which they claim to have an equitable title and an equitable lien. They are seeking to enforce this lien by this bill. The bill further alleges that certain of these shares were transferred to the defendant Caroline H. McDowell and Horace H. McDowell without consideration; that they were really held for the benefit of Jesse C. McDowell; and that therefore they are subject to the same equitable lien as those shares which McDowell still holds.
1. The court directed service of a certified copy of the order of notice of the suit upon the individual defendants. The motion urges that this order was not complied with, because the order served upon the defendant Horace H. McDowell was not a certified copy, but was merely a copy attested by George C. Wheeler, clerk. The first return of service on Horace H. McDowell is rather illegible. It was brought to me in court at the hearing and appears to have been signed by 'O. F. Wolff, U.S. Marshal, by Ed. Carr, Deputy. ' It appears that this return was sent back for amendment. An amended return was filed which shows that the officer 'served the annexed order of court on the therein named Horace H. McDowell, by handing to and leaving a true and certified copy thereof with Horace H. McDowell, at Victoria, Tex., in said district, on February 4, 1921. ' This latter return was signed, 'O. F. Wolff, U.S. Marshal, by Ed. Carr. ' I permitted the amendment to the return. This amendment brings fairly before the court the two returns. From an examination of the two returns it appears clear that Ed. Carr described himself to be a deputy of the United States marshal. A deputy marshal, then, has made the return that he served a certified copy of the order on the defendant in question.
It is urged that, from a copy which is brought before the court, it may be inferred that the copy which was actually served was an attested copy, and not a certified copy. I think it must be held that a copy duly attested by the court is a certified copy within the meaning of the court order. One of the dictionary meanings of 'certify' is 'to verify; to attest authoritatively.' In 2 Words and Phrases, First Series, 1033, it is said:
'The term 'to certify' as used with reference to legal documents, means to testify to a thing in writing; and in the absence of statutory provision declaring the particular form of certification, any form which affirms the fact in writing is sufficient.'
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