Zell v. Erie Bronze Co.

• Decision Date: 27 June 1921
• Docket Number: 2153.
• Citation: 273 F. 833
• Parties: ZELL v. ERIE BRONZE CO. et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

273 F. 833

ZELL v. ERIE BRONZE CO. et al.

No. 2153.

United States District Court, E.D. Pennsylvania.

June 27, 1921

Fraley & Paul and William A. Glasgow, all of Philadelphia, Pa., for plaintiff.

J. Neff Ewing and Chas. N. Butler, both of Philadelphia, Pa., for defendants.

FACTS.

DICKINSON District Judge.

The cause is a patent case, and the proceeding is one against the defendants jointly for a joint trespass upon the patent rights of plaintiff. The ground of jurisdiction of the subject-matter is that a law of the United States is involved. Jurisdiction with respect to parties is based upon the fact of the service of the bill. One of the defendants is an inhabitant of this district and was here served. The other defendants are inhabitants of the city of Erie, and the service upon them was extraterritorial; they having been served in the Western district. The motion is on behalf of the latter defendants.

The Question Outlined.

The question before us is not one of jurisdiction, otherwise than in a very subordinate sense. The expression is an allowable one that jurisdiction is twofold, in that to give the court authority to decide the cause it must have jurisdiction both of the subject-matter and of the parties. Jurisdiction is indeed threefold, in that the court may have jurisdiction generally of the subject-matter and jurisdiction of the defendants by service of its process, and yet may not be the court designated by law to try the particular case. Jurisdiction of the parties, strictly viewed, is wholly a question of the proper service of process, including in this, of course whether the party was amenable to such service. The real question involved here is whether those of the defendants who reside out of the district were properly there served with process, in the sense of whether they were there amenable to such service.

Discussion.

Broadly and generally, in the absence of any statutory limitation or extension of its powers or other regulation of service, a court may acquire jurisdiction of the parties defendant by the service of its process within the territorial limits of the jurisdiction of the court, but not beyond these limits. The early legislation affecting the courts of the United States recognizes this general rule by providing that a defendant might be served in the district of which he was an inhabitant or in any district where found. This was changed by subsequent legislation providing that courts of the United States could entertain actions only in that district of which the defendant was an inhabitant unless the jurisdiction was solely on the ground of diverse citizenship, in which case the action might be brought in the district either of the defendant or the plaintiff.

The present proceeding, although one known as a patent suit, is however, a proceeding in equity in no respect different from other such proceedings, except as provided by statute. A special provision was made by statute in respect to proceedings or actions brought for infringement of letters patent, in that such actions or proceedings might be instituted in the district of which the defendant was an inhabitant, or in the district in which he had committed acts of infringement and had a regular and established place of business, although he was not an inhabitant of that district. In the latter case process might be served upon the agent in charge of such business. There was occasion to provide for the class of cases in which there were several defendants some of whom resided in one district and some in another, and this was done by the statute which enacted that in such a case the plaintiff might proceed against the defendant served, and if the defendants all were inhabitants of the same state, although of different districts, the action might be brought in the district of any one of them, and service had upon all by the usual service upon the defendants within the district in which the action is brought and extraterritorial service in the district in which the other defendants were. The service in this case is upheld, if at all, by this latter statute.

The thought, as we grasp it, which the argument addressed to us is intended to enforce, is that, although this statute would authorize this extraterritorial service in other actions or proceedings, it does not authorize it in suits at law or in equity in infringement of letters patent cases.

Legislation.

The legislation on the subject may be summarized chronologically as follows:

(1) Service permitted upon a defendant wherever found. Act March 3, 1875, 18 Stat.p. 470.

(2) Restricted to district of defendant, except where jurisdiction is dependent upon diverse citizenship alone, and then to district of either party. Act March 3, 1887, 24 Stat.p. 552; Act Aug. 13, 1883, 25 Stat.p. 433.

(3) In patent cases service was permitted in defendant's district, or upon him or his agent in any district in which acts of infringement had been committed, and the defendant had an established place of business. Act March 3, 1897, 29 Stat.p. 695.

All these provisions were carried into the revised Judicial Code (Act March 3, 1911, 36 Stat.p. 1087); cases 3 as section 48 (Comp. St. Sec. 1030); cases 2 (R.S. Sec. 739) as 51 (Comp. St. Sec. 1033); and two other sections (R.S. Secs. 737 and 740), 50 and 52 (Comp. St. Secs. 1032, 1034), were added.

(4) Where there are several defendants residing in different districts, the court may entertain jurisdiction against those properly served, etc. Judicial Code 1911, Sec. 50.

(5) Where there are several defendants residing in different districts of the same state, the court may entertain jurisdiction against all; those in other districts being served extraterritorially. Judicial Code, Sec. 52.

This array of the legislative facts brings to light the contrasting views advanced by counsel:

That of the plaintiff is that any one of the several defendants was amenable to service in his own district, and as all of the defendants resided in the state, they might be brought in by extraterritorial service, and the whole wrong redressed in one action. The acts of Congress authorizing this applied to all actions, and, in consequence, to patent suits. With respect to these there was no inconsistency in subjecting infringers to process also in the district in which the infringement was committed, if they there maintained an office at which service could be made.

The view of defendant is that patent cases are in a class by themselves; that the present Revised Statutes and Judicial Code provide first for patent suits which can be brought only as the law prescribes, and after that provide a system for all other cases.

The Decided Cases.

Each of these views finds support in some of the cases, and neither in others.

In re Hohorst, 150 U.S. 653, 14 Sup.Ct. 221, 37 L.Ed. 1211. This case arose September 15, 1888, and was ruled December 18, 1893. The case was a patent case. The question was whether the restriction of the venue to the district of the defendant by the acts of 1887 and 1888 applied. The court held it did not.

In re Keasbey et al., 160 U.S. 221, 16 Sup.Ct. 273, 40 L.Ed. 402, was a trade-mark case. It arose January 26, 1895 and was determined December 6, 1895. The question was whether a Massachusetts corporation could be sued in New York,...