Kendall v. American Automatic Loom Company/Opinion of the Court

It is objected, in the first place, by the appellee, that the appellant had no statutory right to appeal directly to this court from the order setting aside the service of the subpoena. It is asserted that the case does not involve the jurisdiction of the court below within the meaning of § 5 of the act of March 3, 1891 [26 Stat. at L. 827, chap. 517, U.S.C.omp. Stat. 1901, p. 549], inasmuch as the jurisdiction of the circuit court as a Federal court is not questioned, the jurisdiction being denied upon grounds alike applicable to any other judicial tribunal, state or Federal, under the same circumstances. This case is, however, on that point governed by that of Board of Trade v. Hammond Elevator Co. (decided at this time), 198 U.S. 424, 25 Sup. Ct. Rep. 740, 49 L. ed. -, where it is held that the order is reviewable by this court under the section above mentioned.

Regarding the case as properly here, the question is whether the service made upon the treasurer of the appellee corporation was a valid service upon the corporation itself. We think it was not. It is perfectly apparent that the corporation was, at the time of the service on the treasurer, doing no business whatever within the state of New York, and that it had never done any business there since it was incorporated in the state of West Virginia. While we have lately held that, in the case of a foreign corporation, the service upon a resident director of the state where the service was made was a good service where that corporation was doing business within that state (Pennsylvania Lumbermen's Mut. F. Ins. Co. v. Meyer, 197 U.S. 407, 25 Sup. Ct. Rep. 483, 49 L. ed. -), yet such service is insufficient for a court to acquire jurisdiction over the corporation where the company was not doing any business in the state, and was situated like this company at the time of the service upon the treasurer. Conley v. Mathieson Alkali Works, 190 U. S, 406, 47 L. ed. 1113, 23 Sup. Ct. Rep. 728.

The order of the Circuit Court was right, and is affirmed.