West v. Cincinnati, N.O. & T.P.Ry. Co.

• Decision Date: 15 May 1909
• Citation: 170 F. 349
• Parties: WEST v. CINCINNATI, N.O. & T.P. RY. CO.
• Court: U.S. District Court — Northern District of Georgia

170 F. 349

WEST v. CINCINNATI, N.O. & T.P. RY. CO.

United States Circuit Court, N.D. Georgia.

May 15, 1909

S. D Hewlett and Smith & Hastings, for complainant.

Dorsey Brewster, Howell & Heyman, for defendant.

NEWMAN District Judge.

The question now before the court in this case is on the sufficiency of the service. The suit was brought in the city court of Atlanta, and removed by the defendant corporation to this court. The defendant was served by serving Paul A Wright, its commercial agent here. The language of the service is as follows:

'Georgia, Fulton County:

'Served the defendant, Cincinnati, New Orleans & Texas Pacific Railway Company, a corporation, by serving Paul A. Wright, its commercial agent, by leaving a copy of the within writ and process with him, in person, at the office and place of doing business of said corporation in Fulton county, Georgia,

'This August 4th, 1908.

(Signed) J. T. Jones, Deputy Sheriff.'

In removing the case from the state court to this court, and in its petition for removal, the defendant said:

'Your petitioner further shows that its appearance through its attorneys, to remove this suit, is a special appearance, and does not waive its objection to the jurisdiction of the court-- it being solely for the purpose of removal of said Circuit Court of the United States for the Northern District of Georgia.'

The original plea in abatement makes the question that Paul A. Wright does not in any sense represent the defendant in this state in such a way as to be an agent upon whom service can be perfected, and that the defendant does not do any such business in the state of Georgia as to give it a residence in the state of Georgia for the purpose of serving it, nor does Paul A. Wright represent it in such way as to make him an agent of the company upon whom service can be perfected, nor does he as such agent do any business for said company as to make said company do any business in the state of Georgia, so that it may be served by the processes of the courts of this state.

The defendant states that it makes this special appearance for the express purpose of objecting to the service and for no other purpose whatsoever. The plea makes the sheriff of Fulton county a party and asks that he be served.

The plea makes the question that the attempt to serve it is not due process of law. An amendment to the plea in abatement is as follows:

'And now comes defendant, and appearing specially for the purpose of this proceeding only, by leave of the court first had and obtained, and amends its plea in abatement and to the jurisdiction previously filed, and for such amendment says:

'Defendant has never been served with any notice or process in the above-stated suit, and the service attempted to be had upon it by serving Paul A. Wright, commercial agent, did not give jurisdiction of this defendant, for that the said defendant is not doing business in the state of Georgia, nor is the said Paul A. Wright its agent in the sense that service upon him would be service upon the company.

'Defendant, in common with the Alabama Great Southern Railway Company, a corporation of Alabama, maintains an office in the city of Atlanta, for the said Paul A. Wright, and pays him a monthly salary for his services as commercial agent only. As such, the said Wright has no authority on behalf of defendant to issue bills of lading for said defendant, nor make contracts of affreightment, nor to sell passenger tickets, nor to make contracts of carriage with passengers, but is solely a soliciting agent, and his duties and authority are to endeavor to have freight, moving from the Southern territory, or into the Southern territory, pass over the lines of defendant, such lines being wholly without the state of Georgia.'

The Georgia statute (Civil Code of 1895) on the subject of service of corporations is as follows:

'Sec. 1899. Service of all subpoenas, writs, attachments, and other process necessary to the commencement of any suit against any corporation in any court, except as hereinafter provided, may be perfected by serving any officer or agent of such corporation, or by leaving the same at the place of transacting the usual and ordinary public business of such corporation, if any such place of business then shall be within the jurisdiction of the court in which said suit may be commenced. The officer shall specify the mode of service in his return.'

The Court of Appeals of Georgia have had before it in Bell v. N.O. & N.E. Ry. Co., 2 Ga.App. 812, 59 S.E. 102, the question presented here, and has decided in practically the same kind of a case, where a commercial agent is served, that the service is good under the statute. In the opinion by Powell, J., he says:

'We are satisfied that the Legislature of this state intended that service upon an agent bearing such relation to a corporation as Knight does to the defendant in this case should be sufficient under the broad language of section 1899 of the Civil Code of 1895. * * * To this legislative intent it is our duty to give effect, and we will let the federal question take care of itself. See Southern Bell Telephone Company v. Parker, 119 Ga. 727, 47 S.E. 194.'

In this case of Southern Bell Telephone Company v. Parker, 119 Ga. 727, 47 S.E. 194, a different kind of agent was served. It appears that in the Telephone Company Case the company had never established a telephone exchange or had an operator at Oglethorpe, Ga., but had a long-distance telephone located in the drug store of Dr. Crumley, who was authorized to receive toll from customers using the telephone placed in his store, and who was paid a commission on the tolls received at that station. Dr. Crumley was served in that case, and, while it is conceded in the opinion that the question was a close one as to whether he was such an agent as was contemplated by the statute, the court held the service sufficient.

It can hardly be doubted from the decision in the Bell Telephone Case that the service of the present suit in the city court of Atlanta would have been sustained in the state courts. The question for determination, then, is whether, the state court having acquired jurisdiction of the case under the law of the state, the Circuit Court should, when the case is removed here by special appearance for that purpose, and the defendant specially appearing to file a plea in abatement, adopt a different rule in view of federal authorities.

The Supreme Court of the United States has held that where a case is removed from the state court to this court, and the defendant, a foreign corporation appearing specially for the purpose of removal only, and the question of the sufficiency of the service is raised, the Circuit Court must determine for itself whether the service was good, and will not necessarily be controlled by the state law on the subject. The principal authority to this effect is Goldey v. Morning News, 156 U.S. 518, 15 Sup.Ct. 559, 39 L.Ed. 517. In that case, in the opinion by Mr. Justice Gray, discussing this question it is said:

'As the defendant's right of removal into the Circuit Court of the United States can only be exercised by filling the petition for removal in the state court before or at the time when he is required to plead in that court to the jurisdiction or in abatement, it necessarily follows that, whether the petition for removal and such a plea are filed together at that time in the state court, or the petition for removal is filed before that time in the state court, and that the plea is seasonably filed in the Circuit Court of the United States, after the removal, the plea to the jurisdiction or in abatement can only be tried and determined in the Circuit Court of the United States.

'Although the suit must be actually pending in the state court before it can be removed, its removal into the Circuit Court of the United States does not admit that it was rightfully pending in the state court, or that the defendant could have been compelled to answer therein, but enables the defendant to avail himself, in the Circuit Court of the United States, of any and every defense, duly and seasonably reserved and pleaded, to the action, 'in the same manner as if it had been originally commenced in said Circuit Court."

The same right would appear to exist under subsequent decisions of the Supreme Court, even without the special appearance for the purpose of removal only. In Wabash Western Railway v. Brow, 164 U.S. 271, 278, 17 Sup.Ct. 126, 41 L.Ed. 431, in the opinion by the Chief Justice, this feature of the question is discussed in this way:

'Want of jurisdiction over the person is one of these defenses, and, to use language of Judge Drummond in Atchison v. Morris (C.C.) 11 F. 582, we regard it as not open to doubt that 'the party has a right to the opinion of the federal court on every question that may arise in the case, not only in relation to the pleadings and merits, but to the service of process; and it would be contrary to the manifest intent of Congress to hold that a party, who has the right to remove a cause, is foreclosed as to any question which the federal court can be called upon, under the law, to decide.'

'An appearance which waives the objection of jurisdiction over the person is a voluntary appearance, and this may be effected in many ways, and sometimes may result from the act of the defendant even when not in fact intended. But the right of the defendant to a removal is a statutory one, and he is obliged to pursue the course pointed out, and, when he confines himself to the enforcement of that right in the manner prescribed, he ought not to be held thereby to have voluntarily waived any other right he possesses. An acknowledged right

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