KENNY CONSTRUCTION COMPANY v. Allen, 13791.

• Decision Date: 17 October 1957
• Docket Number: No. 13791.,13791.
• Citation: 248 F.2d 656,101 US App. DC 334
• Parties: KENNY CONSTRUCTION COMPANY, Inc., Appellant, v. Herschel H. ALLEN et al., t/a J. E. Greiner Company, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

101 US App. DC 334, 248 F.2d 656 (1957)

KENNY CONSTRUCTION COMPANY, Inc., Appellant, v. Herschel H. ALLEN et al., t/a J. E. Greiner Company, Appellees.

No. 13791.

United States Court of Appeals District of Columbia Circuit.

Argued October 4, 1957.

Decided October 17, 1957.

Mr. Justin L. Edgerton, Washington, D. C., with whom Messrs. John Wattawa, Charles E. Pledger, Jr., Randolph C. Richardson and John F. Mahoney, Jr., Washington, D. C., were on the brief, for appellant.

Mr. Alexander M. Heron, Washington, D. C., with whom Mr. H. Mason Welch, Washington, D. C., was on the brief, for appellees. Messrs. J. Harry Welch and J. Joseph Barse, Washington, D. C., also entered appearances for appellees.

Before PRETTYMAN, WILBUR K. MILLER, and FAHY, Circuit Judges.

PER CURIAM.

The District of Columbia, a municipal corporation, undertook the construction of certain public works. It engaged as consulting engineers Allen, Jenkins, Allen, et al., a partnership of six members trading as J. E. Greiner Company and resident in Baltimore. Kenny Construction Company, Inc., was awarded the contract of construction. Next door to the contemplated site was Greenway, Inc., a rental housing development. As the excavation proceeded, the surrounding earth settled, and Greenway claimed it was damaged. It sued Kenny and the District of Columbia. Kenny sought to implead Allen, Jenkins, Allen, et al., the designers of the plans for the work. Its problem was to get effective service on the Baltimore partnership or the partners. Among other efforts to that end it served process on the Clerk of the Municipal Court for the District of Columbia as agent of the partners. The contract between Allen, Jenkins, Allen, et al., and the District of Columbia contained a clause which read:

"Article 8. Appointment of Attorney:

"a. Each of the partners constituting Consultant does hereby irrevocably designate and appoint the Clerk of the Municipal Court for the District of Columbia and his successors in office as the true and lawful attorney for each and all of the said partners for the purpose of receiving service of all notices and processes issued by any court in the District of Columbia, as well as service of all pleadings and other papers, in relating sic to any action or legal proceedings arising out of or pertaining to this contract or the work required or performed hereunder."

This language made the Clerk of the Municipal Court the agent of each of the partners in Allen, Jenkins, Allen, et al., for service of process in "any" lawsuit "pertaining to" the work under this contract. The case at...