United States v. Mollenhauer Laboratories, Inc., 12524.

• Decision Date: 03 June 1959
• Docket Number: No. 12524.,12524.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. MOLLENHAUER LABORATORIES, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

267 F.2d 260 (1959)

UNITED STATES of America, Plaintiff-Appellee, v. MOLLENHAUER LABORATORIES, INC., Defendant-Appellant.

No. 12524.

United States Court of Appeals Seventh Circuit.

June 3, 1959.

Bernard Berk, Green Bay, Wis., for appellant.

Edward G. Minor, U. S. Atty., Matthew M. Corry, Asst. U. S. Atty., Milwaukee, Wis., for appellee.

Before DUFFY, Chief Judge, and MAJOR and CASTLE, Circuit Judges.

MAJOR, Circuit Judge.

This action was instituted by the government against Mollenhauer Laboratories, Inc., to recover damages for alleged breach of contract. Default judgment was entered against defendant on June 19, 1958. Motion to set aside said judgment was filed August 5, 1958, which was denied by an order entered September 19, 1958. From this order defendant appeals.

The sole contested issue arises from defendant's contention that the District Court was without jurisdiction to enter the judgment sought to be set aside on the ground that defendant was not served with process in accordance with law.

Rule 4(d) (3) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides for service upon a corporation "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process * * *." Paragraph (d) (7) of the same Rule provides, "* * * it is also sufficient if the summons and complaint are served in the manner prescribed by any statute of the United States or in the manner prescribed by the law of the state in which the service is made for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state." The government in support of its effort to obtain an affirmance of the order under attack relies entirely upon Rule 4(d) (3); hence, we need not be concerned with any other rule or law, including the statute of the State of Wisconsin.

The record reveals no serious dispute as to the circumstances material to the attempted service of process upon the defendant corporation. A brief statement of the facts will therefore suffice.

Process was served May 28, 1958, on Hildegard Denis, Chief Clerk at the Vitamin Shop, a retail store owned by Mollenhauer Sales, Inc., a corporation separate and distinct from defendant although Richard M. Mollenhauer was secretary of the former and president of the latter. Hildegard Denis on the date in question was not an officer or an employee of the defendant corporation nor was she a person authorized by it to receive service of process. Deputy Marshal Knight, on the 28th day of May, 1958, visited the Vitamin Shop for the purpose of obtaining service upon defendant corporation. Upon inquiry, Hildegard Denis informed him that Richard M. Mollenhauer was ill and confined to his home. Knight talked with Mollenhauer by telephone and was told by the latter to leave the papers with Hildegard Denis and that he would pick them up later. Thereupon, Knight delivered a copy of the summons and complaint to Hildegard Denis. The summons and complaint did not come into the possession of Mollenhauer until some four or five days later.

The Deputy Marshal's return states that service was obtained on defendant "by delivering to and leaving with Hildegard Denis Chief Clerk (per instruction of Richard Mollenhauer — President) personally a true copy thereof this 28th day of May, A.D. 1958 at 211 North Washington Street, Green Bay, Wis." It may be noted that the address stated in the...