It has been held that a party to a suit in a State court is not on his journey there exempt from service of process in another State, 34 The privilege must be claimed promptly, or otherwise will be waived.35 It was waived by a delay of nearly four months and a half, during which plaintiff had entered judgment by default; 36 but a delay of three weeks was held not to operate as a waiver. 37 39 A voluntary appearance waives the objection; 38 but, it has been held, that the objection may be raised by a plea in abatement; even when united with a defense upon the merits.40 It has been held: that the execution of a bail bond is not a waiver.41 A judgment is not void so that it can be attacked collaterally, where process was served upon a party while attending a trial.42 § 167a. Return and proof of service of process. If the marshal or his deputy make the service, his unverified return is sufficient. This may be contradicted, although there is a rem 34 Holyoke & S. H. F. I. Co. v. Ambden, 21 L.R.A. 319, 55 Fed. 593. 35 Matthews v. Puffer, 10 Fed. 606, 20 Blatchf. 233; Watson Town Nat. Bank v. Messenger, 66 Pa. Co. Ct. 609. 36 Sebring v. Streyker, 10 Misc. (N. Y.) 289, 30 N. Y. Supp. 1053. 37 Morrow v. U. H. Dudley & Co., 144 Fed. 441. 38 Anonymous, 9 N. J. L. J. 166. But see Larned v. Griffin, 12 Fed. 590; Stewart v. Howard, 15 Barbour (N. Y.) 26; infra, § 170. 39 Larned v. Griffin, 12 Fed. 590. 40 Larned v. Griffin, 12 Fed. 590; Christian v. Williams, 35 Mo. App. 297; O'Loughlin v. Bird, 128 Mass. 600. 41 Larned v. Griffin, 12 Fed. 590; Washburn v. Phelps, 24 Vt. 506; U. S. v. Edme, 9 S. & R. (Pa.) 147. 42 Jaster v. Currie, 198 U. S. 144, 49 L. ed. 988; Walker v. Collins, 59 Fed. 70. A number of authorities § 167a. 1 Von Roy v. Blackman, 3 Woods, 98, 101; Phoenix Ins. Co. v. Wulf, 1 Fed. 775; Equity Rule 16. Where the defendant was named in the bill as Jacob Kraig, a return that the subpoena had been served on Jacob King was held insufficient. McClaskey v. Barr, 45 Fed. 151. 2 Mechanical Appliance Co. V. Castleman, 215 U. S. 437, 54 L. ed. 272; Peper Automobile Co. v. Am. Motor Car Sales Co., See McClaskey v. Barr, 45 Fed. 151; Park Bros. & Co. v. Oil City Boiler Works, 204 Pa. St. 453, 54 Atl. 334. Contra, Dicta in Von Roy v. Blackman, 3 Woods, 98, 100; Joseph v. New Albany S. F. & R. M. Co., 53 Fed. 180; U. S. Bank v. City of Kendall, 179 Fed. 914; U. S. v. McHie, 194 Fed. 894. edy by an action against the officer for a false return.3 The marshal's return, that the corporation served was transacting business within the district, can be contradicted; so can be his return, that the person on whom the service was made was authorized to represent the defendant for that purpose, the return is not conclusive as against strangers to the writ.6 It is insufficient in the case of service upon a corporation, unless it shows that the defendant was transacting business within the district, or that appears elsewhere in the record. The return should show that the person served was an agent or officer of the defendant which was transacting business within the district, and also it has been held the requirements of the State statutes regulating the subject.9 When it states that the person served was the agent of the defendant, it will be presumed that he represented the company within the State: 10 but a return of service upon a general agent, or superintendent 12 was held to be insufficient. 11 The return should state where the service was made, if the defendant reside without the district,13 and probably in any 8 Von Roy v. Blackman, 3 Woods, 98, 100. 4 Peper Automobile Co. v. Am. Motor Car Sales Co., 180 Fed. 245. See St. Clair v. Cox, 106 U. S. 350, 359, 27 L. ed. 222, 226, infra, § 164. 5 Higham v. Iowa State Travelers' Ass'n, 183 Fed. 845. 6 U. S. v. McHie, 194 Fed. 894. 7 Earle v. Chesapeake & O. Ry. Co., 127 Fed. 235; Jackson v. Del. R. A. Co., 131 Fed. 134; Green v. Chicago, B. & Q. Ry. Co., 147 Fed. 767; Allen V. Yellowstone Park Transp. Co., 154 Fed. 504. 8 St. Clair v. Cox, 106 U. S. 350, 359, 27 L. ed. 222, 226; Swarts v. Christie Grain & Stock Co., 166 Fed. 338. 9 Amy v. Watertown, 130 U. S. 391, 9 Sup. Ct. 530, 32 L. ed. 946. 10 St. Clair v. Cox, 106 U. S. 350, 359, 27 L. ed. 222, 226. A marshal's return, which recited the delivery of a true copy on the managing agent of a foreign corporation found in the county, that he was the only agent of the corporation therein, that it was a non-resident, and that none of its principal officers resided in the State, and that all of its officers, except its managing agent, were absent from the State, was held to be prima facie evidence of legal service. Chinn v. Foster-Milburn Co., 195 Fed. 158. 11 Swarts V. Christie Grain & Stock Co., 166 Fed. 338. 12 Boulthbee v. International Paper Co., C. C. A., First Circuit No. 1168. As to agency when two companies have the same name, see Darrow v. Postal Telegraph-Cable Co. of N. Y., 229 Fed. 314. 18 Allen v. Blunt, 1 Blatchf. 480, 487; Thayer v. Wales, 5 Fisher's Pat. Cas. 448. event. If another than the marshal or his deputy serve the subpoena, proof must be made by the affidavit of the processserver.14 Where there had been personal service upon the defendant by a special deputy the fact that the return was in the name of such deputy instead of in the name of the marshal was held an irregularity which did not avoid the judgment when attacked in a collateral proceeding.15 When the return shows that the service was insufficient, a motion may be made to set the service aside.16 The marshal's return is capable of subsequent amendment.17 It has been held that the return to a State court by a sheriff cannot be amended after a removal.18 It may be subsequently supplemented by an affidavit.19 The removal of the suit from a State to a Federal court does not prevent a motion to set aside the service.20 The return of the sheriff or marshal is not conclusive and may be contradictive by the production of statements in the plaintiff's pleading 21 by affidavits 22 or otherwise. The question of jurisdiction is for the ultimate determination of the Federal court.23 A return that a foreign corporation was found within the State, may be contradicted.24 There is no presumption in support of the validity of the service, aside from the facts therein set forth.25 In a suit for an infringement of a patent where the defendant is a non-resident, an allegation that "defendants are now doing business at a designated place within the district," is not a sufficient allegation that they have "a regular and established place of business.'' 26 A statement that service has been made 14 Equity Rule 15. 15 Hill v. Gordon, 45 Fed. 276. 16 Scott v. Stockholders' Oil Co., 122 Fed. 835. 17 Phoenix Ins. Co., v. Wulf, 1 Fed. 775. 18 Tallman v. B. & O. R. Co., 45 Fed. 156. 19 Fountain v. Detroit M. & F. S. L. L. Ry. Co., 210 Fed. 982. 20 Goldey v. Morningside News, 156 U. S. 518, 39 L. ed. 517, supra, $ 163. 21 U. S. v. Southern Bridging Co., 251 Fed. 400. 22 Boultbee v. International Paper Co., C. C. A., 229 Fed. 951. 23 Gen. Inv. Co. v. Lake Shore & M. S. Ry. Co., C. C. A., 250 Fed. 160, 165; Mechanical Appliance Co. v. Castleman, 315 U. S. 437, 441, 30 Sup. Ct. 125, 54 L. ed. 272. 24 Peper Automobile Co. v. Am. Motor Car Sales Co., 180 Fed. 245. 25 Scheurle v. One Piece Bifocal Lens Co., 241 Fed. 270; Boultbee v. International Paper Co., C. C. A., 229 Fed. 951. 26 Scheurle v. One Piece Bifocal Lens Co., 241 Fed. 270. upon the defendant's agent does not authorize the presumption that such agent had the right to receive service of process.27 Upon a motion to vacate an order for substituted service or by publication, the insufficiency of the bill is immaterial when the subject-matter is within the statute.28 It has been held that the order for service by publication may be set aside as to part of the bill and left in force as to the remainder.29 § 167b. Objections to the service of process. A motion to set aside the service,1 or a motion to quash the return,2 accompanied by a special appearance for that purpose, is the proper method of testing the sufficiency of the service; unless the defendant prefers to disregard it and subsequently to raise the objection upon an appeal from the decree, or to resist the execution of the decree as void. Neither plea in abatement & nor demurrer is necessary. The motion must definitely point out the defects in the service. It has been said that nothing beyond the scope of the motion will be considered. It might be held that the motion was addressed to the court's discretion, where the defendant has a remedy by appeal or a writ of error.10 It was held that the denial of a motion made to quash the writ because of improper service in a patent case did not compel the overruling of a plea in abatement on the ground that no act of infringement had been committed within the jurisdic 27 Boultbee v. International Paper Co., C. C. A., 229 Fed. 951. 28 Canton Roll & Machine Co. v. Rolling Mill Co., 155 Fed. 321; Gage v. Riverside Trust Co., 156 Fed. 1002. 29 Evans V. Charles Scribner's Sons, 48 Fed. 303. § 167b. 1 Mason v. N. Y. Steam Power Co., 87 Fed. 241; Bourke v. Amison, 32 Fed. 710; Peper Automobile Co. v. Am. Motor Car Sales Co., 180 Fed. 245. 2 Am. Cereal Co. v. Eli P. C. Co., 70 Fed. 276; Peper Automobile Co. v. Am. Motor Car Sales Co., 180 Fed. 245; Higham v. Iowa State Travelers' Ass'n, 183 Fed. 845; U. S. v. Southern Dredging Co., 257 3 Infra, §§ 169, 170. 4 O'Hara v. McConnell, 93 U. S. 150, 23 L. ed. 840; Butterworth v. Hill, 114 U. S. 128, 29 L. ed. 119; Herbert v. Bicknell, 233 U. S. 70. 5 Meyer v. Kuhn, C. C. A., 65 Fed. 705. 6 U. S. v. Southern Dredging Co., 257 Fed. 400. 7 Meisukas v. Greenough Red Ash Coal Co., 244 U. S. 54. 8 Bankers Surety Co. v. Town of Holly, C. C. A., 219 Fed. 96. 9 Ibid. 10 Herbert v. Bicknell, 233 U. S. 70. tion. A subpoena will not be set aside because addressed to a non-resident over whom the court could exercise jurisdiction with his consent, but not otherwise, although the service upon him might be set aside.12 Before the Equity Rules of 1912, it was held that the objection could not be joined with an answer to the merits.13 A plea in abatement, which denied that the person served "is" an agent or officer of the corporation, was held to be insufficient; since it did not negative the fact that he was such an agent on the date of service.14 Under the former practice, it was held that a plea to the jurisdiction did not raise the question that the stenographer in the employ of defendant transacting business within the State was not the proper person upon whom service should be made.15 It has been held that upon a motion to set aside service upon a foreign corporation because the writ was not served upon the proper person, the defendant need not show upon whom the service should be made or that it has no agent in the district.16 A motion to set aside the service, made six weeks after the service, was held not to be barred by laches.17 Where such a motion had been made and denied in the State court, and no appeal taken from the decision, it was held that it could not be renewed in the Federal Court after a removal, 18 although after a removal the motion may be made for the first time in the Federal Court.19 It has been said that whether a foreign corporation is conducting business within the State and is liable to service therein, is primarily a question of fact.20 Letterheads of defendant which describe a person as one of its officers are presumptive evidence of his 11 United Autographic Register Co. v. Egry Register Co., 219 Fed. 637. 12 Mason v. N. Y. Steam Power Co., 87 Fed. 241. 13 Peper Automobile Co. v. Am. Motor Car Sales Co., 180 Fed. 245. See Chadeloid Chemical Co. v. Chicago Wood Finishing Co., 180 Fed. 770. 14 Scott v. Stockholders' Oil Co., 129 Fed. 615. 15 Chadeloid Chemical Co. v. Chi cago Wood Finishing Co., 180 Fed. 770. 16 Wall v. Chesapeake & O. Ry. Co., C. C. A., 95 Fed. 398, Ward, J., dissenting. 17 Phelps v. Connecticut Co., 188 Fed. 765. 18 Hoyt v. Ogden Portland Cement Co., 185 Fed. 889. 19 Goldey v. Morning News, 156 U. S. 518. 20 See Peper v. Am. Motor Car Sales Co., 233 Fed. 245. |