| U.S. Circuit Court for the District of Eastern New York | Apr 15, 1872
In regard to the motion made in this cause to correct the marshal’s return of service of the subpena upon the defendant Dietz by adding to the return that the service was made in the city of New York, it is sufficient to say that it is needless, in view of the decision in Allen v. Blunt [Case No. 215]. That return, as it stands, does not show where the subpena was served, and is not of itself sufficient to confer jurisdiction. The bill avers that the defendant Dietz resides in New Jersey, and it should appear affirmatively in the return that the subpena was served on him within this district, to render such return a foundation for the exercise of jurisdiction over him. The motion may, therefore, be denied as useless.
The main question before me is presented by the plea to the jurisdiction which Dietz has interposed, upon which plea issue has been joined and testimony taken, upon which a decision is now to be rendered. The plea avers that the defendant Dietz was never served with process in this district, but was served in the city of New York, and that he has never voluntarily appeared in the case. The proofs are sufficient to show that the service of the subpena was made in the city of Ne-jv York; and, if that were all, the plea to the jurisdiction must prevail, as the bill avers the defendant Dietz to be an inhabitant of the state of New Jersey. But the difficulty is that the defendant Dietz has appeared in the cause by attorney, and his plea is filed by attorney, and not in person.
The appointment of an attorney, solicitor, or agent, by whom the plea is put in, is, per se, an appearance — an admission that the court has jurisdiction and a submission thereto. Van Antwerp v. Hurlburd [Case No. 16.826]. This rule, although technical, appears to be followed; and, if applicable in any case, there is no reason for omitting to apply it here, where the subject matter of the controversy arose in this district, and where the defendant transacted a part of his business in this district, and could easily be found therein, and when his co-defendant and partner engaged jointly with him in the infringement complained of, is found within the district. The fact that what is called a special appearance was entered by the attorney for Dietz, without leave of the court, does not relieve the case from the application of the rule. There must, therefore, be a decree fot the plaintiffs upon the plea to the jurisdiction, with liberty to the defendant Dietz to answer, if so advised.
The remaining question arises upon a plea in abatement, interposed by the defendant Wales, because of the non-joinder of Stephen Seguine' as a party plaintiff. The interest of Seguine in the patent sued on depends upon an indenture, in the following words: “Whereas, I, John Stainthorp, of the city of Buffalo and state of New York, did obtain letters patent of the United States for an improvement in machines for making candles, which letters patent bear date March 6, 1855. And whereas, Stephen Seguine, of Staten Island, county of Richmond, state of New York, is desirous of acquiring an undivided fourth part of all my interest therein: now, this indenture witnesseth that, for and in consideration of the sum of one dollar and other good and valuable considerations to me in hand paid, the receipt of which is hereby acknowledged, I have assigned, sold, and set over, and do hereby assign, sell, and set over
Upon the plea interposed by the defendant Wales there must, therefore, be judgment for the defendant, with liberty to the plaintiffs to amend. No costs given to either party on either plea.