Esteve Bros. & Co. v. Harrell
| Decision Date | 06 April 1921 |
| Docket Number | 3638. |
| Parties | ESTEVE BROS. & CO. v. HARRELL. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J Blanc Monroe and Monte M. Lemann, both of New Orleans, La for plaintiffs in error.
Wm Winans Wall and Johnston Armstrong, both of New Orleans, La for defendant in error.
Before WALKER, BRYAN, and KING, Circuit Judges.
This action was brought in a Louisiana state court by John R. Harrell, the defendant in error (herein referred to as the plaintiff), against Esteve Bros. & Co., described as 'a firm composed of Ramon Esteve, Jose Esteve, Javier Esteve, Louis Esteve, and Angel Esteve, * * * engaged in the business of buying cotton and selling same for export,' and domiciled in the city of New Orleans. A deputy sheriff's return shows that, on a date stated, he--
'served a copy of the within citation and accompanying petition on Esteve Bros. & Co., a firm composed of Ramon Esteve, Jose M. Esteve, Javier Esteve, Louis Esteve, and Angel Esteve, defendants herein, by leaving the same at their office, 819 Gravier street, in the hands of C. A. Hatry, manager and cashier, a person apparently over the age of 18 years, whose name and other facts connected with this service I learned by interrogating the said C. H. Hatry, manager and cashier; the said members of said firm, defendants herein, being absent from the state at the time of the service.'
On the application of the individuals composing the defendant firm, alleged to be aliens and nonresidents of Louisiana, who appeared in the state court specially and solely for the purpose of obtaining a removal, there was a removal of the cause to the court below. In that court the same individuals, appearing specially and solely for the purpose of the motion, moved the court to quash the service of process. After that motion was overruled, the same individuals, protesting against the overruling of the motion, appeared under protest and answered the declaration.
In behalf of the plaintiff in error it is contended that no jurisdiction was acquired by the service which was brought into question by the motion to quash. The opposing contention is that that service was made effective to confer jurisdiction by the Louisiana statute which provides that--
'In suits against any commercial association trading under a title or as a firm,' process shall be served 'on any of the partners in person, or at their store or counting house, by delivery to their clerk or agent. ' Code of Practice of Louisiana, art. 198.
The firm of Esteve Bros. & Co., being a partnership formed for the purchase and sale of cotton, is what is known to the Louisiana law as a commercial partnership. Revised Civil Code of Louisiana, art. 2825. Under the Louisiana law a partnership is a fictitious being, distinct from the partners composing it. Succession of Pilcher, 39 La.Ann. 362, 1 So. 929. The above set out provision as to service of process is a recognition that such a partnership as the one in question is subject to be sued. A principal difference between that statute and the Texas statute which was before the court in the case of Sugg v. Thornton, 132 U.S. 524, 10 Sup.Ct. 163, 33 L.Ed. 447, is that the former permits process in a suit against a commercial partnership to be served either on any of the partners in person, or at their store or counting house by delivery to their clerk or agent, while the latter permits judgment against a partnership when process has been served on one of the partners. In the opinion in that case it was distinctly recognized that, so far as firm assets were concerned, the judgment against the partnership was binding on J.D. Sugg, a nonresident partner who was not served. The following is an extract from that opinion:
We are not of opinion that the validity of service of process against a partnership which has the status of a distinct legal entity is dependent upon it being made on one or more of the partners. The artificial being recognized by law may, by agents or representatives other than its component members, be present and subject to be dealt with at a place where no member of the firm is.
In many respects a trading»partnership is like a business corporation. Each is an association of its members for pecuniary gain. A principal difference between them is that changes in the membership of the latter do not affect its identity nor break the continuity of its existence. In the one case as well as the other the law may recognize the existence of the association as an artificial being, separate and distinct from its members, capable of having rights and of being subject to duties or obligations, enforceable in favor of or against it in suits or proceedings to which its members are not parties. It is competent to provide for serving process against a private corporation by delivery to its agent at a place where it does business. We are aware of no legal obstacle standing in the way of service of process against a partnership, which is recognized as a separate legal entity, being authorized to be made in the same way. One not a member of a trading partnership, who is put and left in charge of its place of business, as well may be, so far as firm assets are concerned, a representative of nonresident partners as a resident partner could be.
Under the above set out statute, service in a suit against a commercial partnership, if made by delivery to a clerk or agent, must be 'at their store or counting house. ' The service in question was made in pursuance of the statute. The question of the validity of service of...
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...state or district as to causes of action arising there. Sugg v. Thornton, 132 U.S. 524, 10 S.Ct. 163, 33 L.Ed. 447; Esteve Bros. & Co. v. Harrell, 5 Cir., 272 F. 382. Under the facts of the instant case the question of the amenability of defendants to process is one similar to that of a for......
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