Southern Photo Material Co. v. Eastman Kodak Co. of New York , 224 F. 523 ( 1915 )

NEWMAN, District Judge.

In this case (which is a common-law case) there is a traverse to the return of service by the marshal; the defendant being a New York corporation, and the service being made on Frank Luckiesh at what is stated to be “the office and place of doing business of this corporation in Atlanta, Fulton county, Georgia.” The defendant, by counsel, makes a special appearance for the purpose of challenging the service, and denies that it has either an office or place of business, or any agent or agency, in the state of Georgia, etc.

[1] The question presented now for determination is whether or not this question as to whether the defendant was properly served should he heard by the court or must be tried by a jury. It is contended by the plaintiff that under the law of the state a jury trial is required. This question of following the state law is controlled absolutely, in my opinion, by the case of Mechanical Appliance Company v. Castleman, 215 U. S. 437, 30 Sup. Ct. 123, 54 L. Ed. 272. The language of two headnotes of that case will show what was determined on this question. They are as follows:

“Notwithstanding the conformity act (section 914, Rev. St), decisions and statutes of states are not conclusive upon the federal courts in determining questions of jurisdiction.

“Even if by the law of the state the sheriff’s return is conclusive, and cannot be attacked, after removal into the federal court, that court can determine whether a defendant was properly served; and if, as in this case, it appears that the corporation was not doing business in the state the court should dismiss the bill, for want of jurisdiction by proper service.”

[2] Upon the general question of whether, in the federal courts, the court should hear and determine such question or submit it to a jury, the cases of Goldey v. Morning News, 156 U. S. 518, 15 Sup. Ct. 559, 39 L. Ed. 517, Green v. Chicago, etc., Railway Co., 205 U. S. 530, 27 Sup. Ct. 595, 51 L. Ed. 916, and Mechanical Appliance Co. v. Castleman, supra, are, in my opinion, controlling. True, the question is not distinctly and directly raised in these cases; but in each of them an issue like this was heard by the court, without a jury, and nowhere was the question even raised that such action by the court was illegal or improper in any way. It seems to me to be the settled practice so far as I can understand it. A recent case has just been handed me of Kirby v. Louismann-Capen Co., 221 Fed. 267, in which a similar question seems to have been heard by Judge Evans, in the Western district of Kentucky, without the aid of a jury, and heard on affidavits.

It is clear to me that it is the duty of the court to pass upon the sufficiency of this service without the aid of a jury.