In re Hohorst

Statement by Mr. Justice GRAY: This was a petition for a writ of mandamus to the judges of the circuit court of the United States for the southern district of New York, to command them to take jurisdiction and proceed against the Hamburg-American Packet Company upon a bill in equity filed in that court on September 15, 1888, by the petitioner, described in the bill as of the city of New York, and a citizen of the state of New York, against 'the Hamburg-American Packet Company, a corporation organized and existing under the laws of the kingdom of Hanover, empire of Germany, and doing business in the city of New York; Henry R. Kunhardt, Sr., Henry R. Kunhardt, Jr., George H. Diehl, citizens of the United States, and residents of the state of New York; and Arend Behrens and William Koester, citizens of the United States, and residents of the state of New Jersey,'-for the infringement by all the defendants of letters patent granted by the United States to the plaintiff for an improvement in slings for packages. Upon that bill the following proceedings took place:

A subpoena was issued, addressed to all the defendants, and was served on September 17, 1888, as stated in the marshal's return thereon, 'upon the within-named defendant Henry R. Kunhardt, Sr., by exhibiting to him the within original, and at the same time leaving with him a copy thereof;' and 'upon the within-named defendant Hamburg-American Packet Company, by exhibiting to Henry R. Kunhardt, Sr., general agent for said company, the within original, and at the same time leaving with him a copy thereof.'

On November 5, 1888, the return day of the subpoena, a general appearance for all the defendants was entered by a solicitor.

On December 18, 1888, the company, 'by Kunhardt & Co., agents,' filed a demurrer to the bill for multifariousness, for want of equity, 'and for divers other good causes of demurrer appearing in the said bill of complaint,' and not otherwise specified; and supported the demurrer by the affidavit of Behrens that he was an agent of the company, that the demurrer was not interposed for delay, and that he was duly authorized to make the affidavit in behalf of the company.

On December 24, 1888, the plaintiff moved for leave to amend his bill, by alleging that the defendants jointly infringed his patent; and 'that all of the defendants above named are inhabitants of the city and county of New York; that the defendant the Hamburg-American Packet Company has its principal business office in this country located in the city and county of New York; that the defendants Henry R. Kunhardt, Sr., Henry R. Kunhardt, Jr., George H. Diehl, Arend Behrens, and William Koester are, and during the time of the infringement above set forth were, copartners under the firm name of Kunhardt & Company, and as such copartners are and were the agents and managers of the business of the Hamburg-American Packet Company in this country, and have their principal business office as such located in the city and county of New York; and that the said infringements were committed in the prosecution of such business, and all the defendants have co-operated and participated in all the said acts and infringements.'

An affidavit of Behrens, filed in opposition to this motion, contained the following statements: 'I do not regard it as true that the Hamburg-American Packet Company has its principal business office in this country located in the city and county of New York. The actual facts are that the said company has its docks, where all its steamers land and take and discharge cargo, situated in the state of New Jersey. There also is the office of the company for the transaction of the matters immediately connected with all its actual industrial operations in this country. Said company advertises that it has an office in the city of New York, which is the office of the firm of Kunhardt & Co., is rented by Kunhardt & Co., and entirely under their control. It is in fact the office of Kunhardt & Co., agents for the Hamburg-American Packet Company; and in said office of Kunhardt & Co., and by Kunhardt & Co. as agents, the usual monetary and financial transactions of said Hamburg-American Packet Company are conducted. All the actual physical business of said Hamburg-American Packet Company within the United States, however, is conducted within the state of New Jersey, as aforesaid. It is not true that Kunhardt & Co. have, jointly with said Hamburg-American Packet Company, infringed the letters patent set forth in the bill of complaint. All operations of loading and unloading the cargo from the said Hamburg-American Packet Company's vessels in this country are performed in New Jersey as aforesaid, under the immediate direction and control of a superintendent especially employed and appointed by the Hamburg-American Packet Company for that purpose, and whose salary or compensation is paid by said company, and with the direction and details of whose supervision of said loading and unloading the firm of Kunhardt & Co. have no concern and exercise no control.'

On January 7, 1889, the company moved to dismiss the bill for want of jurisdiction.

On January 11, 1889, the motion to amend and the motion to dismiss were heard together; and the court denied the motion to dismiss, 'but without prejudice to any subsequent demurrer, plea, answer, or motion to dismiss, because of lack of jurisdiction;' gave the plaintiff leave to amend the bill, as prayed for, nunc pro tunc as of the time when it was filed; and gave the defendants leave to answer, plead, or demur to the bill, as amended, on or before the first Monday of March. On February 2, 1889, the plaintiff filed a bill so amended.

On February 16, 1889, the company served on the plaintiff notice of hearing upon the bill and demurrer.

On February 21, 1889, the company moved for leave to amend its general appearance into to a special appearance for the specific and only purpose of moving to set aside the service of the subpoena upon it through its alleged agent Henry R. Kunhardt, Sr., and to dismiss the bill as against it for want of jurisdiction; and also moved to set aside the service and to dismiss the bill as against it, 'because of lack of jurisdiction of this court over the person of said defendant.'

An affidavit of Richard John Cortis, filed in support of this motion, stated that for several years he had been well acquainted with the details of the organization and residence and general business of the company; that its principal offices and place of business were, and always had been, at the city of Hamburg, in the empire of Germany, and the residences of all its directors and stockholders were within the territorial limits of that empire; and that it had never had an office in the city of New York, or at any place within the southern district of New York.

On April 5, 1889, the court ordered that this motion be granted, unless the plaintiff should, within five days, file a stipulation to withdraw the amended bill as to the company, and to go to trial as to the company upon the original bill. 38 Fed. 273. No such stipulation having been filed, on April 11, 1889, the court ordered that the appearance be amended as moved for; that the service of the subpoena upon the company be set aside and quashed; and that the bill be dismissed as against the company.

From that order the plaintiff, on May 23, 1889, took an appeal, which was entered in this court on October 8, 1889, argued on March 13, 1893, and dismissed on March 27, 1893, for want of jurisdiction, because that order, not disposing of the case as to all the defendants, was not a final decree, from which an appeal would lie. 148 U.S. 262, 13 Sup. Ct. 590.

On May 1, 1893, an application was made to this court for leave to file the present petition, praying for a writ of mandamus to the judges of the circuit court to take jurisdiction and proceed against the company in the suit aforesaid, and to strike from the record the order of April 11, 1889, and to make such disposition of the suit as ought to have been made had that order not been made; and for such other relief in the premises as might be just.

On May 10, 1893, this court gave leave to file the petition, and granted a rule to show cause, returnable at this term. On October 17, a return was filed, setting forth the foregoing proceedings of the circuit court, and stating that the order of April 11, 1889, was made upon the following grounds:

(1) That it was made to appear, and the circuit court found, that the company had originally made a general, instead of a special, appearance in the suit, because of a justificable mistake on its part as to the nature of the suit, caused by the plaintiff's own allegations in the original bill.

(2) That it appeared by the affidavits and other proceedings set forth in the record that the company is a corporation organized and existing under the laws of the kingdom of Hanover, empire of Germany, and is not, and was not at the time of the service of the subpoena upon Henry R. Kunhardt, Sr., an inhabitant of the southern district of New York.

(3) That, upon the facts as presented to the circuit court, and shown by the record, it did not appear that said Kunhardt was at any time the general agent of the company, or such an agent that service upon him of the subpoena in the suit was sufficient to confer jurisdiction over the company.

Charles M. Demond, for petitoner.

Charles M. Demond, for petitioner.

Mr. Justice GRAY, after stating the facts in the foregoing language, delivered the opinion of the court.