Toledo Railways Light Company v. Walter Hill

• Decision Date: 21 May 1917
• Docket Number: No. 200,200
• Citation: 61 L.Ed. 982,37 S.Ct. 591,244 U.S. 49
• Parties: TOLEDO RAILWAYS & LIGHT COMPANY, Plff. in Err., v. WALTER L. HILL and Ralph L. Spotts, as Executors of the Last Will and Testament of Harford B. Kirk, Deceased
• Court: U.S. Supreme Court

244 U.S. 49

37 S.Ct. 591

61 L.Ed. 982

TOLEDO RAILWAYS & LIGHT COMPANY, Plff. in Err.,

v WALTER L. HILL and Ralph L. Spotts, as Executors of the Last Will and Testament of Harford B. Kirk, Deceased.

No. 200.

Argued April 23, 1917.

Decided May 21, 1917.

Messrs. Robert Burns and Charles A. Frueauff for plaintiff in error.

Messrs. Howard S. Gans, Paul M. Herzog, and Arthur S. Levy for defendants in error.

Mr. Chief Justice White delivered the opinion of the court:

Averring themselves to be citizens of the United States, the one residing in the city of New York and the other in Boston, Massachusetts, the defendants in error in April, 1914, sued in the supreme court of the state of New York to recover from the plaintiff in error the principal and interest of certain bonds issued by the plaintiff in error, alleged to be a corporation created by the laws of Ohio. The summons was served upon a director and vice president of the corporation, residing in the city of New York. The corporation, appearing specially for that purpose, on the ground of diversity of citizenship, removed the cause to the district court of the United States for the southern district of New York, and, on the filing of the record in that court, again solely appearing for such purpose, moved to vacate the service of summons on the ground that the corporation was created by the laws of the state of Ohio, and was solely engaged in carrying on its business at Toledo in that state; that is, in the operation of street railways and the furnishing of electrical energy for light and other purposes. The motion to vacate expressly alleged that the corporation was prosecution no business in the state of New York, and that the person upon whom the summons was served, although concededly an officer of the corporation, had no authority whatever to transact business for or represent the corporation in the state of New York. On the papers, affidavits, and documents submitted, the motion to vacate was refused and an answer was subsequently filed by the corporation setting up various defenses to the merits and besides reasserting the challenge to the jurisdiction. At the trial, presided over by a different judge from the one who had heard and adversely disposed of the challenge to the jurisdiction, the court, treating the ruling on that subject as conclusive, declined, therefore, to entertain the request of the corporation to consider the matter as urged in the answer. After this ruling the corporation refused to take part in the trial on the merits except to the extent that by way of objections to evidence, requests for rulings and instructions to the jury, it restated and reurged its previous contention as to jurisdiction. There was a verdict and judgment for the plaintiffs, and this direct writ of error to review alone the ruling as to jurisdiction was prosecuted, the record containing the certificate of the trial judge, as required by the statute.

Upon the theory that, as there was diversity of citizenship, the challenge to the jurisdiction involved merely authority over the person, it is insisted that even if the objection be conceded to have been well taken, it was subject to be waived and was waived below, and therefore is not open. This must be first disposed of. The...