Page:Federal Reporter, 1st Series, Volume 8.djvu/812

 798 PEDEEAL REPORTBB. �corporation. The retum of the marshal is not conclusive upon the defendant, and he may disprove it on the hearing of a plea to the jurisdiction. Van Renssetaer v. Ckadwick, 1 How. Pr. 297; Litchfield V. Btmvell, 5 How. Pr. 341 ; Wallis v. Lott, 15 How. Pr. 667. �If the plaintiff thinks that he can, by fnrther proof, establish the fact that the person upon whom the service was made was the managing agent of the lowa corporation, we will withhold final judgment until a further hearing can be had; but, if he resta the case upon the proof as it now stands, the plea to the jurisdiction will be sustained. �There is a motion to dismiss the plea to the jurisdiction, upon the ground that it bas been waived by the filing of an answer. It appears that some time since the case, upon the plea to the jurisdiction, was argued before Judge Dillon, and taken under advisement by him. Pending its consideration, the defendant left an answer with the clerk, indorsed, "To be filed subject to the plea to the jurisdiction." I think it is within the discretion of the court to hold that the answer has not been filed, within the meaning of the rule invoked by plain- tiff's counsel, and th'at defendant has not waived the plea to the jurisdiction. �The motion to dismiss the plea is overruled. �DuNDY, D. J., concurs. ���At the May term, 1881, the cause came on for further hearing, upon the plea to the jurisdiction ; and, upon further proof adduced in relation thereto, a further opinion was delivered, as follows : �McCbaey, C. J. The evidence adduced upon the trial of the issue, upon the plea in abatement, does not show that service in this case was made upon an agent of the lowa corporation. It is true that the whole line is under one management; that the principal offices are in lowa, and that the station agent upon whom service was made makes his reports to the general office at Cedar Rapids, lowa. The line through both states is operated by one management, one set of officers, one board of directors, one set of stockholders. This the legislature of Nebraska is presumed to have known when it enacted the statute declaring that if an lowa railroad oompany extends its line into this state, and files its articles of incorporation, it "shall be a legal corporation of the state." Act of February 14, 1873, (Gen. St. 206.) The plain effect of this statute is to constitute the Sioux City & Pacific Eailroad Company, at least for jurisdictional purposes, ��� �