Garvey v. Compania Metalurgica Mexicana

• Decision Date: 16 April 1915
• Docket Number: 503.
• Citation: 222 F. 732
• Parties: GARVEY v. COMPANIA METALURGICA MEXICANA et al.
• Court: U.S. District Court — Western District of Texas

222 F. 732

GARVEY v. COMPANIA METALURGICA MEXICANA et al.

No. 503.

United States District Court, W.D. Texas, El Paso Division.

April 16, 1915

Stanton & Weeks, of El Paso, Tex., for plaintiff.

Davis &amp Goggin and Paul D. Thomas, all of El Paso, Tex., for defendant Compania Metalurgica Mexicana.

Before HENRY D. CLAYTON, District Judge, sitting by designation.

HENRY D. CLAYTON, District Judge.

Plaintiff Garvey, on July 9, 1914, filed in the special district court of El Paso county, Tex., his original petition against the Compania Metalurgica Mexicana, a corporation, and R. G Dufourcq, claiming the sum of $15,000 as damages for certain personal injuries alleged to have been sustained by plaintiff at Sierra Mojada, Mexico. He alleges that such injuries were received by him while he was in the employ of the defendant company, and while acting under the direction of the defendant Dufourcq, alleged to be an employe of defendant company.

Citation out of said state court was duly issued the same day the petition or complaint was filed, and the return of the sheriff recited the execution of same on August 8, 1914, by delivering to the defendants true copies of the citation; the citation being served upon Compania Metalurgica Mexicana, the return showed, by delivering a copy thereof to defendant company 'in person of R. G. Dufourcq, superintendent and agent.'

On September 5, 1914, defendants filed their petition for the removal of said cause to the District Court of the United States for the Western District of Texas, at El Paso alleging that the amount in dispute exceeded, exclusive of interest and costs, the sum or value of $3,000; that the defendant company was a New Jersey corporation, having no office or place of business in Texas, and was a nonresident of the state of Texas; that defendant Dufourcq was a resident and citizen of New York, and that Garvey was a resident of El Paso county, Tex. A removal bond was given and approved, and the order of removal was duly made by the state court on September 8, 1914, and on September 25, 1914, the certified copy of the record was duly filed in this court.

The defendant Compania Metalurgica Mexicana, on October 16, 1914, filed a motion in this court to quash and set aside the service alleged to have been made upon it by the sheriff of the state court. It appeared specially for this purpose, and in the motion specifically disclaimed any and all intention of entering an appearance to the cause. The ground of the motion to quash the service is:

That said court and this court has acquired no jurisdiction of this action of the person or property of this defendant, this defendant not having been served with summons herein, and no property belonging to it having been seized, or any other process whatsoever, nor has any writ of garnishment been issued or served upon any person or persons in any way indebted to or having property of this defendant in their possession or under their control, or being indebted to this defendant in any way, and this defendant being a nonresident of the state of Texas and absent from said state, and because this defendant is neither a citizen or resident of the state of Texas, being a citizen of the state of New Jersey, under the laws of which state it is incorporated, having its principal office in the city and county of New York, and having no place of business in the state of Texas. That neither this defendant, nor any agent of this defendant, nor any person in any wise authorized to represent this defendant has ever been served with process of the state court or with process issued out of this court, and that the service attempted to be made upon this defendant by service of citation upon R. G. Dufourcq, as the representative or agent of this defendant, was no service upon this defendant, for the reason that said R. G. Dufourcq was not at the time of said service upon him an agent of this defendant, nor was he representing this defendant in any capacity whatsoever. That the said Dufourcq has not since the time of said service represented this defendant in any capacity, nor has he at any time been the agent of the defendant, and that the said Dufourcq was not at the time of said service, and has not been since that time, and in fact has never been, either the president, vice president, secretary, treasurer, or general manager of this defendant. That the said Dufourcq had at one time been an employe of this defendant in the republic of Mexico, but at the time of said pretended service upon him had long ceased to have any connection with this defendant, as is shown by the affidavit of said Dufourcq, hereto attached and made a part of this pleading. That the said Dufourcq is not a citizen or resident of the state of Texas, and was neither a resident nor a citizen of the state of Texas at the time of said pretended service upon him, but a citizen of the state of New York, temporarily residing in the republic of Mexico, and at the time said pretended service was had upon him was only temporarily in the city and county of El Paso and state of Texas on his own private business, and in no way connected with this defendant or its business.

The affidavit of Dufourcq, made a part of the motion, showed that at the time of the service had upon him he was not an agent of Compania Metalurgica Mexicana or in any way connected with that corporation. Dufourcq has appeared generally and answered the petition, so that no question is raised as to the jurisdiction of the court over his person.

When the motion to quash and set aside the service of the citation came on for hearing at the October, 1914, term of the court, plaintiff's counsel was not present, although notified of the date for the hearing of the motion. The term of the court was adjourned sine die that day, and the court, being unable to dispose of the motion, then ordered:

That the said motion, and a right to a hearing thereon, be and the same is hereby continued until the next regular term of this court, without prejudice to the right of said Compania Metalurgica Mexicana to present and have the same passed upon at said next regular term before being required to answer herein, and without prejudice to its right to file, present and have passed upon such plea or pleas in abatement as it may see fit to...