Murphy v. Herring-Hall-Marvin Safe Co.
| Citation | 184 F. 495 |
| Decision Date | 23 January 1911 |
| Docket Number | 1,068. |
| Parties | MURPHY et al. v. HERRING-HALL-MARVIN SAFE CO. |
| Court | U.S. District Court — District of Nevada |
M. A Murphy, for plaintiffs.
McIntosh & Cook, for defendant.
This is a motion to quash the service of summons on the ground that it was not made in a manner to give the court jurisdiction of the defendant. The action is one at law, commenced in the state court by plaintiffs, residents of the state, to recover damages for alleged deceit against the defendant, a corporation organized and existing under the laws of the state of New York. Defendant maintained no office or place of business in the state, nor had any resident agent therein but had a general agent for the Pacific Coast who was a resident of the state of California with his office located in the city of San Francisco. Service of summons was had personally upon this agent at Tonopah, Nev., while he was temporarily there in necessary attendance as a witness upon the trial of a case then in progress in the state court in which this defendant was plaintiff and the present plaintiffs were defendants; the service being made by the sheriff of the county.
Having in due time, had the cause removed to this court upon the ground of diversity of citizenship, the defendant has interposed the present motion, based upon the theory that the facts bring the case within the well-established doctrine of the federal courts that, in a personal action like the present, brought against a corporation in the courts of a state of which the defendant is a nonresident and wherein it neither has property nor does business, nor maintains an agent to represent it, a service made, as in this instance upon an officer of the defendant merely temporarily within the state, is ineffectual and void and confers no jurisdiction over the person of the defendant. Goldey v Morning News, 156 U.S. 518, 15 Sup.Ct. 559, 39 L.Ed. 517, and cases there cited.
Plaintiffs resist the motion upon several grounds. It is contended: First, that the circumstances under which the service was made take the cause out of the rule above referred to; second, that, by reason of a certain order made at defendant's instance in the state court, defendant waived any defect that may have attached to the mode of service; and, third, that, defendant not having limited his appearance in the state court on his application for a removal to a special appearance for that purpose, such application in itself constituted a general appearance in the case which gave the state court jurisdiction of the person of the defendant.
As to the last proposition, it is sufficient to say that, while there are some of the earlier cases which sustain such contention, the latest expressions from the Supreme Court hold the contrary view; and it may now be regarded as settled that an appearance in the state court for the sole purpose of exercising the right of removal, even in the absence of any express limitation thereof in its terms, is to be regarded as a special appearance for such purpose, and as constituting no waiver of an objection to the jurisdiction, such as here made. Wabash Western Railroad v. Brow, 164 U.S. 271, 17 Sup.Ct. 126, 41 L.Ed. 431; National Accident Society v. Spiro, 164 U.S. 281, 17 Sup.Ct. 996, 41 L.Ed. 435.
With reference to the defendant's first contention, above stated, there was evidence adduced at the hearing of the motion tending to show that, while defendant maintained no office or fixed place of business in Nevada, it nevertheless did business therein through the medium of traveling salesmen employed in selling its safes, and further that, while having no resident agent therein, that state was in fact included in the territory represented by the agent upon whom the service was had; and it is contended that these facts make a case which does not fall within the application of the doctrine relied on by defendant. But I do not deem it necessary to pass on this objection, since, in the view I take of the second ground urged against the motion, that question becomes immaterial.
As to the latter objection, it appears that, within the time required under the statute of the state to appear, the attorneys then representing this defendant in the action on trial in the state court and now appearing for it here made application to the judge of that court and obtained an order in the cause of which the following is a copy:
It is contended by plaintiffs, and I think correctly, that in applying for and obtaining this order the defendant must be held to have submitted itself to the jurisdiction of the state court and to have thereby estopped itself from now urging any...
To continue reading
Request your trial
-
Leonardi v. Chase Nat. Bank of City of New York
...McCrary Co. v. Nashville Bridge Co., 64 F.(2d) 385 (C.C. A.5), Clark v. Southern Pac. Co., 175 F. 122 (C.C.Tex.), and Murphy v. Herring-Hall-Marvin Safe Co., 184 F. 495 (C.C. Nev.), referred to by appellees, all involve motions made by the defendant before the court's ruling on jurisdiction......
-
Feldman Inv. Co. v. Connecticut General Life Ins. Co.
...to answer or otherwise plead constitutes a general appearance. Hupfeld v. Automaton Piano Co. (C. C.) 66 F. 788; Murphy v. Herring-Hall-Marvin Safe Co. (C. C.) 184 F. 495; Hoyt v. Ogden Portland Cement Co. (C. C.) 185 F. 889; Placek v. American Life Ins. Co. (D. C.) 288 F. 987; Brookings St......
-
Everett Ry., Light & Power Co. v. United States
...501. ' Murphy v. Herring-Hall-Marvin Safe Co., supra. The order entered in this case is not unlike the order in issue in Murphy v. Hering-Hall-Marvin Safe Co., supra, which was Judge Van Fleet held a general appearance. I think the motion to dismiss must be denied. ...
-
Brookings State Bank v. Federal Reserve Bank of San Francisco
... ... 717; Waters v ... Central Trust Co., 126 F. 469, 471, 62 C.C.A. 45; ... Murphy v. Herring-Hall-Marvin Safe Co. (C.C.) 184 F ... 495; Everett Ry., Light & Power Co. v. United ... ...