Simon v. Southern Ry. Co.

195 F. 56 | 5th Cir. | 1912

MAXEY, District Judge

(after stating the facts as above). Upon consideration of the issues involved in the present suit, the following conclusions are announced:

[ 1, 2] 1. That the Circuit Court had jurisdiction of the suit has been authoritatively decided in Ex parte Simon, 208 U. S. 144, 28 Sup. Ct. 238, 52 L. Ed. 429. See, also, Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524; Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. 62, 35 L. Ed. 870, and authorities therein cited. That decision is binding upon this court until reversed or modified by the Supreme Court.

• 2. At the time the petition was filed in the state court by the appellant to recover damages of the appellee, to wit, December 1, 1904, the latter was doing business in the parish of Orleans, state of Louisiana.

[ 3 ] 3. As to the service of process and validity of the judgment rendered by the state court against the appellee:

A copy of the citation was served on the Assistant Secretary of State, who simply deposited it among the files of his office. The appellee had no notice of the suit. Judgment by default was taken and damages were assessed by the jury. Was the service sufficient? The pertinent act of the Legislature of Louisiana reads as follows:

“Section 1. Be it enacted by the General Assembly of the State of Louisiana : That it shall be the duty of every foreign corporation doing any business iu this state to file in the office of the Secretary of State a written declaration setting forth and containing the place of locality of its domicile, the place or places in the state where it is doing business, and the name of its agent or agents or other officer in this state upon whom process may be served.

“Sec. 2. Be it further enacted, etc., that whenever any such, corporation shall do any business of any nature whatever in this state without having complied with the requirements of section J. (one) of this act, it may be sued for any legal canse of action .in any parish of the state where it may do business, and service of process in such suit may be made upon the Secretary of State the same and with the same validity as if such corporation had been personally served.” Session Acts 1904, pp. 133, 134'. „

Prior to filing the suit in the state court, the appellee had ’not' named an agent upon whom process might be served, and, as before stated, service was had upon the Assistant Secretary of State.

We are of the opinion that service upon the Assistant was not the equivalent of service upon the Secretary of State. It is a fundamental principle of our jurisprudence that a person, whether artificial or natural, must have the opportunity of a hearing before being condemned.

“It is,” said the Supreme Court, “a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination. It is judicial usurpation and oppression and never can be upheld where justice is justly administered.” Galpin v. Page, 18 Wall. 368, 369, 21 L. Ed. 959.

See, also, Pennoyer v. Neff, 95 U. S. 714, 24 L Ed. 565; Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896.

The method of service, indicated by the statute, was not pursued in this case, and, employing the language of the Supreme Court:

“The eases are numerous which decide that where a particular method of serving process is pointed out by statute, that method must be followed, and the rule is especially exacting in reference to corporations.” Amy v. Watertown, 130 U. S. 316, 317, 9 Sup. Ct. 530, 32 L. Ed. 946, citing numerous authorities.

And in the same case, at pages 317 and 318 of 130 U. S., at page 536 of 9 Sup. Ct. (32 L. Ed. 946), the court quotes approvingly the following language of the Supreme Court of Wisconsin used by the latter in City of Watertown v. Robinson, 69 Wis. 233, 236, 237, 34 N. W. 142:

“When the statute prescribes a particular mode of service, that mode must be followed. Ita lex seripta est. There is no chance to speculate whether some other mode will not answer as well. This has been too often held by this court to require further citations. * * * When the statute designates a particular officer to whom the process may be delivered, and with whom it may be left, as service upon the corporation, no other officer or person can be substituted in his place. The designation of one particular officer upon whom service may be had excludes all others. The temporary inconvenience arising from a vacancy in the office of mayor affords no good reason for a substitution of some other officer in his place, upon whom service could be made, by unwarrantable construction not contemplated by the statute.” .

[4] The service of the citation upon the Assistant Secretary of State was not a compliance with the requirements of Act 54 of the Legislature of Louisiana, and such service was therefore unavailing to bring the appellee into court. Since then there was neither valid service of process nor voluntary appearance on the part of the appellee, the judgment by default was void for the want of jurisdiction of. the person.

The conclusion reached by the court renders it unnecessary to call in question the constitutionality of Act 54 quoted above. But see Gouner v. Missouri Valley Bridge & Iron Co., 123 La. 964, 49 South. 657.

The decree of the trial court perpetuating the injunction is right, and it is therefore affirmed.