Ex parte Schollenberger

CourtUnited States Supreme Court
Writing for the CourtWAITE
Citation96 U.S. 369,24 L.Ed. 853
Decision Date01 October 1877
PartiesEX PARTE SCHOLLENBERGER

96 U.S. 369
24 L.Ed. 853
EX PARTE SCHOLLENBERGER.
October Term, 1877

Page 370

PETITION for a mandamus to the judges of the Circuit Court of the United States for the Eastern District of Pennsylvania.

Schollenberger, a citizen of Pennsylvania, brought sundry suits in said Circuit Court against certain foreign insurance companies, upon policies which they had severally issued upon his property situate in that State and within the jurisdiction of the court.

Each company, before the issue of its policy, had accepted the provisions of the statute of the State, and, in compliance therewith, appointed its agent residing there, on whom process of law against it could be served. So much of the statute as bears on the question here involved is set out in the opinion of this court.

The service of the writs, which were sued out by Schollenberger, and executed, in accordance with the State law, on the agents of the several companies by them respectively specified for the purpose, and residing within the jurisdiction of the court, was quashed by the Circuit Court. On his petition, setting forth the foregoing facts, a rule was awarded upon the judges of that court to show cause why a writ of mandamus should not be issued out of the office of this court, commanding them to hear and determine the suits so brought in the said Circuit Court, and also to strike from the record certain orders dated the thirteenth day of April, 1878, whereby the service of the said writs was quashed, and thereupon to make such disposition of the suits as ought to have been made, had the said orders not been entered.

The judges, in their return, answered, that the facts were truly stated in the petition; that the respondents declined to hear and determine the said suits, because, in their opinion, the said Circuit Court had no competent jurisdiction thereof, the defendants not having appeared therein, or in any wise submitted to the jurisdiction of the court, and not having been at the commencement of the respective suits, or at any time, inhabitants of or found in the said district, within the meaning of the act of Congress of March 3, 1875, re-enacting a like provision of the eleventh section of the act of Sept. 24, 1789; that the question under this enactment being one of jurisdiction,

Page 371

and not of mere procedure, the statute of Pennsylvania, mentioned in the said petition, was, in the opinion of the respondents, inapplicable. The service of the process in the said suits was, therefore, set aside, as unauthorized.

Mr. R. C. McMurtrie and Mr. A. Sydney Biddle for Schollenberger.

1. The jurisdiction of the Circuit Court over the parties is indisputable. Schollenberger was a citizen of Pennsylvania. The corporations were created by other States, and by entering their appearance to the actions would have become subject to that jurisdiction, which would not be the case if the requisite citizenship of the parties to the record did not exist. Jones v. Anderson, 10 Wall. 327.

2. Mandamus is the appropriate remedy.

That writ goes to the archbishop, if exercising judicial functions, Reg. v. Canterbury, 11 Q. B. 483; to a court declining to exercise judicial functions imposed by law, Reg. v. West R. Justices, 1 New Sess. Cas. 247; to compel making a warrant of distress, St. Lukes v. Middlesex, 1 Wils. 133; on a refusal to act because of a statute which did not apply to the case, Reg. v. Bingham, 4 Q. B. 877; on a refusal to hear an appeal for reasons which were not legal ones, Reg. v. Middlesex, 2 B. C. R. 82; on a refusal because of an erroneous opinion as to sufficiency of grounds, Reg. v. Carnarvon, 1 G. & D. 423; or on erroneous point of practice, Reg. v. Kistevan, 3 Q. B. 810; on a refusal of the Circuit Court to take jurisdiction of a cause removed to it from a State court, Railroad Company v. Wiswall, 23 Wall. 567; on a refusal to grant an appeal to which a party is entitled, Ex parte Cutting, 94 U. S. 14; Ex parte Jordan, id. 248.

3. The State had a right to impose the prescribed conditions to the transaction of the business of insurance within her territory by the companies. Doyle v. Insurance Company, 94 U. S. 535; Lafayette Insurance Co. v. French, 18 How. 404; Railroad Company v. Harris, 12 Wall. 65. The latter having accepted them, and subsequently issued the policies which are the subject-matter of the suits in question, were bound to specify, and did specify, agents residing within the State upon whom process could be served. Service in the mode prescribed by the State

Page 372

law, upon such agents actually within the jurisdiction of the court, was, therefore, good under the act of Congress (17 Stat. 197), and had the same effect as if personally made within the eastern district of Pennsylvania upon the respective companies.

4. Each of the companies had, therefore, a habitat for the purposes of jurisdiction within that district, and was found there, within the meaning of the act of Congress of March 3, 1875 (18 Stat. 470). Knott v. Southern Life Insurance Co., 2 Woods, 479; Railroad Company v. Harris, supra.

Mr. Richard P. White, contra.

1. Mandamus is not the proper remedy.

The question raised on the motion below to quash the service of the writs was one of jurisdiction, and the judges in passing upon it were obviously acting in a judicial, and not in a ministerial, capacity. The proceeding may be reviewed on error; but it is not the office of a mandamus to compel an inferior court to reverse a decision made in the exercise of its legitimate jurisdiction. Ex parte Flippin, 94 U. S. 348.

2. The service of the writs was properly quashed. Each of the defendants was a foreign corporation, not having an existence, nor its officers any official character, outside the limits of the State which created it. Bank of Augusta v. Earle, 3 Pet. 519; Ohio & Mississippi Railroad Co. v. Wheeler, 1 Black, 286. It could not, therefore, be found within the district. Although the pretended service was according to the State law, the act of Congress requiring conformity of process and procedure did not make it good, if a court of the United States had no power to issue the writ, or proceed in the cause. That power cannot be derived from State legislation, Toland v. Sprague, 12 Pet. 300; Levy v. Fitzpatrick, 15 id. 167; Insurance Company v. Morse, 20 Wall. 445; and Congress, so far from conferring it, has prohibited a suit in the Circuit Court against a person not an inhabitant of nor found within the district.

The writs, for the service of which the statute of Pennsylvania provides, are, by an express limitation, confined to those sued out in actions brought in the tribunals of that State.

Page 373

If, however, each company, by its acceptance of that statute, was constituted, pro tanto, a Pennsylvania corporation, then the Circuit Court had no jurisdiction, as both parties were, for the purposes of the suit, citizens of the same State. Where a corporation exists in two States, it cannot be sued in a...

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325 practice notes
  • Gold Issue Min. & Mill. Co. v. Pennsylvania Fire Ins. Co., No. 17298.
    • United States
    • United States State Supreme Court of Missouri
    • March 24, 1916
    ...Insurance Co. v. French, 18 How. 404 [15 L. Ed. 451]; Railroad Co. v. Harris, 12 Wall. 65 [20 L. Ed. 354]; Ex parte Schollenberger, 96 U. S. 369 [24 L. Ed. 853]; Railroad Co. v. Koontz, 104 U. S. 5, 10 [26 L. Ed. 643]." This cause had been cited and approved in the following cases: Southern......
  • McCoy v. Siler, No. 10952.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 10, 1953
    ...As economic advances were made the law took the changed circumstances into consideration and, finally, in Ex parte Schollenberger, 1877, 96 U.S. 369, 24 L.Ed. 853, "Mr. Chief Justice Waite * * * displaced metaphor with common sense." As was also said in Neirbo the decision in the Schollenbe......
  • Great Northern Life Ins Co v. Read, No. 235
    • United States
    • United States Supreme Court
    • April 24, 1944
    ...Commonwealth, it is a court within it; and that, as we think, is all the legislature intended to provide for.' Ex parte Schollenberger, 96 U.S. 369, 377, 24 L.Ed. 853. This conception of a federal court as a court within the State of its location has ever since dominated our decisions. See,......
  • Neirbo Co v. Bethlehem Shipbuilding Corporation, No. 38
    • United States
    • United States Supreme Court
    • November 22, 1939
    ...could not be there.4 And such was the practice of the circuit courts5 until the opinion of Chief Justice Waite in Ex parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853, displaced metaphor with common sense. The essential difference Page 170 between the practice which Mr. Justice Nelson6 initia......
  • Request a trial to view additional results
325 cases
  • Gold Issue Min. & Mill. Co. v. Pennsylvania Fire Ins. Co., No. 17298.
    • United States
    • United States State Supreme Court of Missouri
    • March 24, 1916
    ...Insurance Co. v. French, 18 How. 404 [15 L. Ed. 451]; Railroad Co. v. Harris, 12 Wall. 65 [20 L. Ed. 354]; Ex parte Schollenberger, 96 U. S. 369 [24 L. Ed. 853]; Railroad Co. v. Koontz, 104 U. S. 5, 10 [26 L. Ed. 643]." This cause had been cited and approved in the following cases: Southern......
  • McCoy v. Siler, No. 10952.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 10, 1953
    ...As economic advances were made the law took the changed circumstances into consideration and, finally, in Ex parte Schollenberger, 1877, 96 U.S. 369, 24 L.Ed. 853, "Mr. Chief Justice Waite * * * displaced metaphor with common sense." As was also said in Neirbo the decision in the Schollenbe......
  • Great Northern Life Ins Co v. Read, No. 235
    • United States
    • United States Supreme Court
    • April 24, 1944
    ...Commonwealth, it is a court within it; and that, as we think, is all the legislature intended to provide for.' Ex parte Schollenberger, 96 U.S. 369, 377, 24 L.Ed. 853. This conception of a federal court as a court within the State of its location has ever since dominated our decisions. See,......
  • Neirbo Co v. Bethlehem Shipbuilding Corporation, No. 38
    • United States
    • United States Supreme Court
    • November 22, 1939
    ...could not be there.4 And such was the practice of the circuit courts5 until the opinion of Chief Justice Waite in Ex parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853, displaced metaphor with common sense. The essential difference Page 170 between the practice which Mr. Justice Nelson6 initia......
  • Request a trial to view additional results

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