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GOLDEY V. MORNING NEWS, 156 U. S. 518 (1895)

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U.S. Supreme Court

Goldey v. Morning News, 156 U.S. 518 (1895)

Goldey v. Morning News

No. 55

Argued and submitted December 13, 1894

Decided March 11, 1895

156 U.S. 518


Section 1011 of the Revised Statutes, as amended by the act of February 18, 1875, c. 80, providing that there shall be no reversal by this Court upon a writ of error "for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court," does not forbid the review of a decision, even on a plea in abatement, of any question of the jurisdiction of the court below to render judgment against the defendant, though depending on the sufficiency of the service of the writ.

In a personal action brought in a court of a state against a corporation which neither is incorporated nor does business within the state, nor has any agent or property therein, service of the summons upon its president, temporarily within the jurisdiction cannot be recognized as valid by the courts of any other government.

A corporation sued in a personal action in a court of a state, within which it is neither incorporated nor does business nor has any agent or property does not, by appearing specially in that court for the sole purpose of presenting a petition for the removal of the action into the circuit court of the United States, and by obtaining a removal accordingly, waive the right to object to the jurisdiction of the court for want of sufficient service of the summons.

This was an action for a libel, claiming damages in the sum of $100,000, brought in the Supreme Court of the State of New York for the County of Kings, by Catherine Goldey, a citizen of the State of New York, against the Morning News of New Haven, a corporation organized and existing under the laws of the State of Connecticut and carrying on business in that state only, and having no place of business, officer, agent, or property in the State of New York.

The action was commenced January 4, 1890, by personal service of the summons in the City and State of New York upon the president of the corporation, temporarily there, but a citizen and resident of the State of Connecticut, and on January 24, 1890, upon the petition of the defendant, appearing chanroblesvirtualawlibrary

Page 156 U. S. 519

by its attorney specially and for the sole and single purpose of presenting the petition for removal, was removed into the Circuit Court of the United States for the Eastern District of New York because the parties were citizens of different states and the time within which the defendant was required by the laws of the State of New York to answer or plead to the complaint had not expired.

In the circuit court of the United States, the defendant, on February 5, 1890, appearing by its attorney specially for the purpose of applying for an order setting aside the summons and the service thereof, filed a motion, supported by affidavits of its president and of its attorney to the facts above stated, to set aside the summons and the service thereof, upon the ground

"that the said defendant, being a corporation organized under the laws of the State of Connecticut, where it solely carries on its business, and transacting no business within the State of New York, nor having any agent clothed with authority to represent it in the State of New York, cannot legally be made a defendant in an action by a service upon one of its officers while temporarily in said State of New York."

Thereupon that court, after hearing the parties on a rule to show cause why the motion should not be granted,

"ordered that the service of the summons herein be, and the same is hereby, set aside and the same declared to be null and void and of no effect, and the defendant is hereby relieved from appearing to plead in answer to the complaint or otherwise herein."

42 F.1d 2. The plaintiff sued out this writ of error.

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