106 F. 220 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1901
Tlie bills in these cases allege that the American Graphophone Company, one of the defendants, though not an inhabitant of this district, has a regular and established place of business therein. It is unnecessary to decide upon this motion whether or not this allegation is well founded in fact, and I do not do so, but I deem it proper to say that the impression which has been made upon my mind by the affidavits how presented is that it is not.
The present motion is to set aside the service of the alias subpoena, and to strike off the return of service, as to the American Graphophone Company, and I am of the opinion that the objection made is well taken. The return is that the writ Was served “by leaving a true and attested copy thereof with Ernest Lowengrund, the designated agent of said company, and making the contents of same known to him.” Mr. Lowengrund, it appears, is the designated agent of the American Graphophone Company, under the Pennsylvania statute of April 22, 1874. But this does not show that the corporation has an established place of business in this district, but merely that it may do business in Pennsylvania without violation of the laws of that state; and the act of congress upon which the plaintiff is compelled to rely, as giving this court jurisdiction of the defendant in question, not only requires that such a defendant shall have a regular and established place of business within the district, but also that service of subpoena shall be made, not upon agents generally, but “upon the agent or agents engaged in conducting such business in the district, in which suit is brought.” It is clear, upon the proofs, that Mr. Lowengrund is not such an agent. The motion to set aside the service of the alias subpoena, as to the American Graphophone Company, is granted.
