Nickerson v. Warren City Tank & Boiler Co.
| Decision Date | 15 June 1915 |
| Docket Number | 3414. |
| Citation | 223 F. 843 |
| Parties | NICKERSON v. WARREN CITY TANK & BOILER CO. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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A. D MacDade, of Chester, Pa., for plaintiff.
A. D Wiler, of Philadelphia, Pa., for defendant.
The defendant is an Ohio corporation, unregistered in Pennsylvania. The action is to recover damages for injuries sustained here. The witnesses are here. These and other obvious considerations make this the natural and convenient jurisdiction in which to try the issues likely to be raised. Unless, however, the defendant was in fact amenable to the service of the process of the court, and the service as returned is found to have been sufficient, the plaintiff, however inconvenient it may be, must seek the defendant within that jurisdiction in which it can be found and may be served. One other broad generalization may be made. Whenever the question of service is raised in determining the validity of a judgment obtained by default and without notice in fact to the defendant, and because of this without opportunity to present the defense, the record may properly be closely scrutinized to see that there was valid service. Whenever, however, the defendant has actual knowledge of the issuance of the writ, and has specially appeared for the purpose of raising the question of the propriety of the service, or of compliance with the formalities of a return of service, the defendant should be required to stand upon his legal rights, and if the service was in fact proper and legally sufficient, the return should not be set aside for mere informality, without an opportunity being afforded for its amendment in conformity with the facts.
Two facts are essential to a good service of process. One is the actual or constructive presence of the defendant within the jurisdiction. The other is a service made in the legal mode or manner prescribed. The motion in this case challenges the existence of both of these necessary facts. It asserts, first, that defendant was not here to be served; and, secondly, that the mode of service as returned was unauthorized by law, and the return thereof insufficient. The answer avers the presence of the defendant and maintains the sufficiency of the return. The basis of a return of service thus being a fact or facts, there is in every question of its sufficiency the accompanying query of how the facts are to be determined and by whom they are to be found. Take the case of a defendant returned as served and without other complicating circumstances. The one fact here is the simple one of whether it was the defendant who was served, or whether he was in fact served. Necessarily, in the first instance, at least, the marshal or other officer must determine the fact. This finding he makes in his return. Necessarily, again, the fact, at least prima facie, must be as returned. If the fact be challenged, and the real defendant denies he was served, we come to the intermediate query of how the question of fact can be raised or the remedy at the command of a defendant so circumstanced. One remedy which suggests itself is an action against the marshal for a false return. Another is a plea in abatement. Still another, at least possible one, is a motion to quash the return or to set aside the service. Out of the choice of possible remedies arises this preliminary question. The earlier cases in Pennsylvania laid down the doctrine that the return of the sheriff could not be questioned, but for the purpose of bringing the defendant into court was conclusive, and, as it must be accepted as verity, the defendant was remitted to his plea in abatement or his action for a false return. the principle has been modified, at least to the extent that where the return of the sheriff is not in itself complete, in the sense of not being wholly self-supporting, there a motion would be entertained, and the facts inquired into and determined by the court. This modification implied the converse, that when the return is complete and self-supporting, the old rule still pertains. The rulings have nevertheless shown a drift, and the courts avow it in the direction of permitting an inquiry into the real facts, and allowing the return to stand or setting it aside in accordance with the facts as found by the court. Park Bros. v. Oil City Boiler Works, 204 Pa. 453, 54 A. 334; Fulton v. Association, 172 Pa. 117, 33 A. 324; Hagerman v. Empire Slate Co., 97 Pa. 534.
This is the attitude of the courts of the United States. The fact of the presence of the defendant within the jurisdiction they determine for themselves, and in determining it they may or may not follow the rulings of the state courts. The statutes of the states creating a constructive presence within the jurisdiction for process service, such as acts providing for service upon the registered agents of foreign corporations, are held to include service of process by the courts of the United States. Schollenberger Case, 96 U.S. 369, 24 L.Ed. 853; Lafayette Co. v. French, 59 U.S. (18 How.) 404, 15 L.Ed. 451.
When the fact of the presence of the defendant is not in dispute, and only the mode or manner of the service is in question, a service in accordance with the requirements of the state statutes is a good service. Dinzy v. Railroad (C.C.) 61 F. 49.
The presence of an individual defendant is a manifest fact. The presence of a corporation as an entity is not so manifest. It may in its charter of incorporation declare the place of its domicile and its residence, in the sense of its principal office or place of business. Its presence otherwise is not manifested, except by its officers or agents. Strictly speaking, a corporation does not migrate when its officers move into another jurisdiction. It would follow from this that it could be sued only in the state of its incorporation. It is a well-known fact, however, that many corporations do business in foreign jurisdictions. They can only do this with the consent, express or implied, of the...
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