Robert Mitchell Furniture Co v. Selden Breck Const Co

• Decision Date: 05 December 1921
• Docket Number: No. 56,56
• Citation: Robert Mitchell Furniture Co v. Selden Breck Const Co, 257 U.S. 213, 42 S.Ct. 84, 66 L.Ed. 201 (1921)
• Parties: ROBERT MITCHELL FURNITURE CO. v. SELDEN BRECK CONST. CO
• Court: U.S. Supreme Court

257 U.S. 213

42 S.Ct. 84

66 L.Ed. 201

ROBERT MITCHELL FURNITURE CO.

v SELDEN BRECK CONST. CO.

No. 56.

Argued Nov. 7, 1921.

Decided Dec. 5, 1921.

Messrs. Leo J. Brumleve, Jr., and Walter A. De Camp. both of Cincinnati, Ohio, for plaintiff in error.

Messrs. Simeon Nash and Curtis C. Williams, both of Columbus, Ohio, for defendant in error.

Mr. Justice HOLMES delivered the opinion of the Court.

This case is here on error to a judgment of the District Court that held the summons in the suit void and, on the plaintiff's statement that it could not secure service otherwise, dismissed the petition for want of jurisdiction over the person of the defendant. An appeal to this Court lies in such a case. Board of Trade of the City of Chicago v. Hammond Elevator Co., 198 U. S. 424, 25 Sup. Ct. 740, 49 L. Ed. 1111. The material facts are as follows: The action is brought by an Ohio corporation upon a contract made with the defendant, a Missouri corporation, to deliver 'f. o. b. cars Ann Arbor, Michigan,' specified woodwork for the library building of the University of Michigan, upon which the defendant was engaged. The contract was made by correspondence between the plaintiff in Cincinnati and the defendant in Chicago, and would seem from the affidavits and exhibits to have become operative by the posting of a letter of the defendant accepting corrections, at Chicago, on February 10, 1917, although by the declaration it is alleged to have been made in Cincinnati. Beaumont v. Prieto, 249 U. S 554, 29 Sup. Ct. 383, 63 L. Ed. 770. The defendant is a contractor, constructing buildings and the like, and, being a foreign corporation, in 1910 had designated Simeon Nash as a person upon whom process against it could be served within the State of Ohio, as required by statute. Subsequently it constructed buildings in Ohio, but its last work was finished on October 29, 1918, and its workmen and property were withdrawn from the State. Since that date it has made no bids for work there. This action was begun on April 5, 1919, in a State Court of Ohio, but afterwards was removed to the District Court of the United States. The only service was upon Nash, and the question is whether it was sufficient in the circumstances set forth.

An annual report is required by Gen. Code, § 5499, for foreign corporations for profit doing business in the State. The defendant filed such a report in July, 1919, after the service, and no doubt would have been ready to bid upon Ohio contracts that seemed to it tempting, as it had done in the past. The plaintiff contends that these facts show that it was doing business in Ohio when the writ was served. The defendant says that the report was necessary for the ascertainment of taxes due from it for the last financial year, but it may be assumed that the wish to keep open the possibility of further employment was a contributing motive. It did nothing, however, and it contends that merely watching from outside for a...