229 F. 951 | 1st Cir. | 1916
The defendant, according to the pleadings on both sides, was a New York corporation having its principal place of business in New York, of which state it was a citizen. The plaintiff, a citizen of Maine, sued it in the Maine District Court, to recover damages, under a Maine statute, for the death of her intestate, alleged to have been killed in its employ, through its negligence, in a mill operated by it in Orono, Me.
The service of the writ, appearing from the marshal’s return thereon, was by a nominal attachment and by “giving in hand to John H. Stinchfield, superintendent of said company,” an attested copy, with a summons.
The defendant pleaded in abatement that no valid service upon it had been made. The plea alleged, in substance, that Stinchfield was not its tenant, agent, or attorney, in Maine, upon whom service of the writ could be made without previous actual attachment of goods, effects, or credits, and that another person residing in Maine (upon whom there had been no service) had been duly appointed, and was at the time its agent for such service according to the laws of Maine.
The plaintiff replied that good, sufficient, and legal service had been made. The defendant demurred, on the grounds that the replication denied no material fact stated in the plea, and tendered an issue of law, not of fact.
The replication was held good, and the demurrer overruled, whereupon the plaintiff moved for judgment in her favor. She assigns here as error the denial of this motion and the action of the District Court in proceeding, against her objection, to hear the case on the issues raised by the plea.
Before filing its demurrer, the defendant had asked leave to withdraw its plea in abatement, appear generally, and plead to the merits. This motion was opposed by the plaintiff and denied by the court. Upon what grounds it was so opposed or denied the record does not show, nor has the denial been assigned as error. From what appears
No valid judgment for the plaintiff could have been entered, ex-, cept upon a record showing due service upon the nonresident defendant, sufficient to give the District Court in Maine jurisdiction over it, independently of any attachment of property belonging to it within the district. The defendant was before that court only for the purpose of objecting that such jurisdiction had never been obtained, for the reasons set forth in its plea. Both parties having waived a jury, both submitted evidence to the court, which evidence is before us, upon the issues raised by the plea. The result of this hearing was that a motion by the plaintiff for “judgment on the facts” was denied, the plea in abatement was sustained, and the writ was quashed. The plaintiff assigns all this as error. Judgment for the defendant followed.
The defendant contends that the Maine statute “prescribes the exclusive method for service” upon foreign corporations doing business within the state. Whether or not this view was adopted by the District Court does not appear, no opinion having been filed. Under a state statute of this kind, going no further than to provide that process “may be served” upon the agent appointed in accordance with its requirements, and imposing no penalty for failure to appoint any such agent, it has been held that the method of service established is not exclusive, and that valid service may be made upon any agent within the state sufficiently representative in character. Henrietta, etc., Co. v. Johnson, 173 U. S. 221, 19 Sup. Ct. 402, 43 L. Ed. 675. Although the Maine statute here in question does impose such a penalty, and although the language of one of its clauses is that service of process “shall be made” by leaving a copy in the appointed agent’s hands or in his office, we are not prepared to hold that under no circumstances is service upon any other agent or representative of a nonresident corporation to be recognized as valid. That this was the legislative intent does not seem to us sufficiently clear from the above features of the Maine statute.
In most of the cases wherein such questions have been raised, the nonresident corporation, though doing business within the jurisdiction, has had no appointed agent therein with express authority, and unless authority to receive service could be'implied from the authority regarding the corporation’s business within the state or district then being exercised by the person served, it followed that no jurisdiction except by actual attachment of property was there obtainable.
We think the conclusion that Stinchfield’s authority with respect to the defendant’s Maine business was not such as carried with it the implication that he was agent or attorney for the purpose of service
The judgment of the District Court is affirmed, and the defendant in error recovers its costs of appeal.