122 F. 835 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1903
After the motion to set aside the return of service upon the Dumble Development Company had been granted, counsel for plaintiff applied for a reargument, upon the question of the effect which should be given to the marshal’s return. That application was allowed, and the question mentioned has since been fully argued. I have, however, not been convinced that the order heretofore made should be disturbed. If the only ground of objection taken to the marshal’s return had been that it is untrue in fact, the general rule of practice would be to raise such issue of fact by plea in abatement; but the present motion raises the question of the legal sufficiency of the service, and, for that purpose at least, it may, if well founded, be maintained. United States v. American Bell Tel. Co. (C. C.) 29 Fed. 17.
The Dumble Development Company is admittedly a Delaware corporation. The return does not state, nor does it appear from the record, that it is an inhabitant of this district, or has in any manner become subject to the jurisdiction of this court, and therefore, even if it be true, as stated, that the person served was, when served, “secretáry and general manager of said company,” yet the return is legally insufficient, because it does not affirmatively show all that is requisite to constitute a valid service.
The order heretofore entered is confirmed.
