McNeal-Edwards Co. v. Frank L. Young Co., 2345.

• Decision Date: 01 July 1930
• Docket Number: No. 2345.,2345.
• Parties: McNEAL-EDWARDS CO. v. FRANK L. YOUNG CO.
• Court: U.S. Court of Appeals — First Circuit

42 F.2d 362 (1930)

McNEAL-EDWARDS CO. v. FRANK L. YOUNG CO.

No. 2345.

Circuit Court of Appeals, First Circuit.

July 1, 1930.

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Asa P. French and Jonathan W. French, both of Boston, Mass., for appellant.

W. B. Leach, Jr., of Boston, Mass. (Warner, Stackpole, Bradlee & Cabot, John G. Palfrey, and Charles F. Albert, all of Boston, Mass., on the brief), for appellee.

Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.

BINGHAM, Circuit Judge (after stating the facts as above).

The questions raised by the first three assignments of error are whether the District Court acquired jurisdiction either by the service of process upon Mr. French, the attorney of record of the McNeal-Edwards Company, in the suit brought by it against the Young Company, or by the supplementary attachment, or by the defendant, the McNeal-Edwards Company, having in this suit voluntarily submitted itself to the jurisdiction of the court.

It is not, and could not well be, contended that the defendant voluntarily submitted itself to the jurisdiction of the court. The record discloses that from the very inception to the close of the case the defendant appeared specially, reserving its right to question the jurisdiction of the court. So the questions, on this branch of the case, are whether jurisdiction over the suit was acquired by the supplementary attachment of defendant's property in the state, or over the defendant personally by serving process upon Mr. French under the circumstances herein disclosed.

Although the plaintiff's suit of January 4 against the McNeal-Edwards Company, a Virginia corporation, was brought in the Federal District Court, it contends and, in order to support the jurisdiction of the District Court, must contend that the provisions of section 1, 2, 3, and 4 of chapter 227, Gen. Laws Mass., hereafter quoted, are applicable to a suit brought in that court and obligatory upon it. Arkwright Mills v. Aultman & Taylor Co. (C. C.) 128 F. 195.

Section 8 of chapter 181, Gen. Laws Mass., provides:

"Section 8. Foreign corporations having property in this commonwealth shall be liable to be sued and to have their property attached in the same manner and to the same extent as individuals who are residents of other states and who have property in this commonwealth. The service of the writ shall be made in the manner provided in chapters two hundred and twenty-three and two hundred and twenty-seven, with such further service as the court to which the writ is returnable orders."

It is not contended and could not be that the service of the writ in this case was had under the provisions of chapter 223. The service had purported to be under the provisions of chapter 227, which reads as follows:

"Section 1. A personal action shall not be maintained against a person not an inhabitant of the commonwealth unless he or his agent appointed under section five has been served with process in the commonwealth, or unless an effectual attachment of his property within the commonwealth has been made upon the original writ, and in case of such attachment without such service, the judgment shall be valid only to secure the application of the property so attached to the satisfaction of the judgment.

"Section 2. If an action is brought by a person not an inhabitant of the commonwealth or who cannot be found herein to be served with process, he shall be held to answer to any action brought against him here by the defendant in the former action, if the demands are of such a nature that the judgment or execution in the one case may be set off against the judgment or execution in the other. If there are several defendants in the original action, each of them may bring such cross action against the original plaintiff and may be allowed to set off his judgment against that which may be recovered against him and his co-defendants in like manner as if the latter judgment had been against him alone.

"Section 3. The writ in such cross action may be served on the attorney of record for the plaintiff in the original action, and such service shall be as valid and effectual as if made on the party himself in the commonwealth.

"Section 4. The court in which either of the actions is pending may order continuances to enable the absent party to defend the action brought against him, and to enable either party to set off his judgment or execution against that which is recovered against him, but the actions shall not be unreasonably delayed by the neglect or default of either party. The provisions of the following sections, relative to actions against persons absent from the commonwealth, shall not apply to a cross action brought under the two preceding sections.

"Section 5. Every individual not an inhabitant of the commonwealth and every partnership composed of persons not such inhabitants, having a usual place of business in the commonwealth, temporarily or permanently, or engaged here, temporarily or permanently, and with or without a usual place of business here, in the construction, erection, alteration or repair of a building, bridge, railroad, railway, or structure of any kind, shall, before doing business in the commonwealth, appoint in writing a person who is a citizen and resident thereof to be his or its true and lawful attorney upon whom all lawful processes against such individual or partnership may be served with like effect as if served on such person or partnership. * * * The power of attorney shall be filed in the office of the state secretary, and copies certified by him shall be taken as sufficient evidence thereof, etc."

The service provided for in section 5 is not applicable in this suit, for the action was brought under sections 2, 3, and 4, and section 4 expressly provides that in such case the mode of service authorized by section 5 shall not apply.

It has been held by the Massachusetts court that, by force of section 8, c. 181, above set out, a nonresident corporation may be sued and have its property attached in the manner provided in section 1 of chapter 227, but that where such corporation is not personally served with process and only a nominal, not "an effectual attachment," has been made "upon the original writ," that a supplementary attachment, subsequently had on special process, is not an attachment on the original writ and is invalid. Roberts v. Anheuser Busch Brewing Ass'n, 215 Mass. 341, 102 N. E. 316. And it has also been held by the Supreme Court of the United States that neither under section 915, Rev. St. (28 USCA § 726), nor under any provision of the Act of March 3, 1887 (24 Stat. 552), as amended August 13, 1888 (25 Stat. 434), can a supplementary attachment be had in a Federal District Court where no personal service can be had upon the defendant and where there was no personal appearance; that "an attachment is still but an incident to a suit, and that, unless jurisdiction can be obtained over the defendant, his estate cannot be attached in a Federal Court," as "attachment * * * is not a means of acquiring jurisdiction" on process issued out of a federal court, whether the attachment is made on the original or a supplementary process. Big Vein Coal Co. v. Read, 229 U. S. 31, 37, 38, 33 S. Ct. 694, 696, 57 L. Ed. 1053.

It is, however, held that if property is attached on a writ issued out of a state court and the statutes of the state authorized the attachment, upon removal of the cause to the federal court, jurisdiction over the property will be retained, notwithstanding the attachment would not confer jurisdiction had it been made on a writ issued out of the federal court and no personal service had been obtained. Clark v. Wells, 203 U. S. 164, 27 S. Ct. 43, 51 L. Ed. 138; St. Louis, B. & M. Ry. v. Taylor, 266 U. S. 200, 208, 209, 45 S. Ct. 47, 69 L. Ed. 247.

As there was "no effectual attachment" of the defendant's property in the district of Massachusetts upon the "original writ" brought by the plaintiff (January 4, 1927) in this case, it follows that the supplementary attachment was invalid and would not confer jurisdiction on the District Court under section 1; or under the federal rule, unless jurisdiction over the defendant was obtained; and that the position taken by this court in its opinion in this case of November 12, 1929 — that the District Court "had jurisdiction to the extent of the value of the attached property, whether the service on the seller's attorney was or was not valid" to give jurisdiction over the person of the defendant, and therefore this court had jurisdiction to determine the merits of the case, without deciding whether the District Court acquired jurisdiction over the defendant — was clearly wrong.

As to the question whether the defendant, a nonresident corporation, was present doing business in the district of Massachusetts so that personal service of process was or could be had upon it there, the following facts appeared:

The contract for the sale of the goods in question was made in Baltimore, Md., through a broker acting for both parties, and was to be performed and was performed there by the delivery of the goods f. o. b. Baltimore. It is evident from these facts that the sale was not made and that the right of action did not accrue in Massachusetts, but in Maryland, and the return of the sheriff on the writ in the removal suit brought by the plaintiff in the Massachusetts court against the defendant (now discontinued) shows that when the officer in September, 1922, attempted to make personal service of the writ, he was unable to do so for the reason that the defendant was not doing business through any officer or agent in Massachusetts.

The facts alleged in the writ in this case of January 4, 1927, are that the defendant was a Virginia corporation and a citizen and resident of that state, having its usual place of business at Readville therein, which corporation cannot be found to be served with process. And the defendant's plea in abatement...