Northern Kentucky Tel. Co. v. Southern Bell Tel. & T. Co.

• Citation: 54 F.2d 107
• Decision Date: 07 November 1931
• Docket Number: No. 3939.,3939.
• Parties: NORTHERN KENTUCKY TELEPHONE CO. v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. et al.
• Court: U.S. District Court — Eastern District of Kentucky

54 F.2d 107 (1931)

NORTHERN KENTUCKY TELEPHONE CO. v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. et al.

No. 3939.

District Court, E. D. Kentucky.

October 14, 1931.

On Motion to Reconsider November 7, 1931.

M. J. Hennessey, of Augusta, Ky. (William J. Donovan, Bethuel M. Webster, Jr., and Breck P. McAllister, all of New York City, of counsel), for plaintiff.

J. W. Heintzman, of Cincinnati, Ohio, for defendant Cincinnati & Suburban Bell Telephone Co.

COCHRAN, District Judge.

This action is before me on the motion of the defendant Cincinnati & Suburban Bell Telephone Company, to dismiss the action as to it, and to quash and set aside the return of the marshal as to service. It is alleged, and it sufficiently appears, that this defendant transacts business in this district. This being so, this court has jurisdiction of the action as to this defendant, and it can be brought before the court by the service of process in Ohio. According to the return of the marshal, service thereof was had on the president of the defendant, but it is claimed that this is incorrect and that service was actually had on R. C. Hall, its secretary and treasurer. The motion to quash is sustained on this ground, and alias process can issue to be served on the president. The motion to dismiss is overruled.

On Motion to Reconsider.

This action is before me on motion of Cincinnati & Suburban Telephone Company to reconsider order overruling its motion to dismiss the petition as to it for want of jurisdiction. I should have dealt with this matter more fully in my former opinion. The defendant submits the following authorities in support of its motion, to wit: Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U. S. 516, 43 S. Ct. 170, 67 L. Ed. 372; Bank of America v. Whitney Bank, 261 U. S. 171, 43 S. Ct. 311, 67 L. Ed. 594; Southwark Foundry v. Franz Foundry (C. C. A.) 48 F.(2d) 714.

These, as well as the authorities cited in its brief on its motion to dismiss, deal with the question as to what is necessary in order to the suability of a corporation in a foreign jurisdiction. It is well settled that it must be doing or carrying on business therein. These authorities have no application whatever to a case of this sort. In those cases, the doing of business in the state must be such as to justify the conclusion that the corporation is present in the state. In a case of this sort, that is not essential. Jurisdiction thereof is conferred by section 22, 15 USCA. In order to have jurisdiction, it is essential that the defendant "be found or transact business" in the district where sued. It is not essential that it be found, that is be present, therein. It is sufficient that it transact business therein. Its transaction of business therein may be short of what is essential to its being found or present therein, and yet jurisdiction exist.

In the case of Eastman Kodak Co. v. Southern Photo Materials Co., 273 U. S. 359, 47 S. Ct. 400, 403, 71 L. Ed. 684, it was said: "And we think it clear * * * that a corporation is engaged in transacting business in a district, within the meaning of this section, in such sense as to establish the venue of a suit — although not present by agents carrying on business of such character and in such manner that it is `found' therein and is amenable to local process — if in fact, in the ordinary and usual sense, it `transacts business' therein of any substantial character."

The sole question here, therefore, is whether at the time of the bringing of this action the defendant was transacting business of a substantial character in this district. In determining this, the authorities relied on by defendant afford no help. They are confusing. It is...