Herriage v. Texas & P. Ry. Co. , 11 F.2d 671 ( 1926 )

DAWKINS, District Judge.

This ease has been submitted upon a motion to quash the citation. The suit is one for damages because of illness alleged to have been occasioned by the failure of defendant to properly heat one of its coaches, upon which the petitioner was traveling as a passenger. It is alleged that the defendant is a citizen of the state of Texas, but that it has an agent for the service of process in the city of New Orleans, La. The prayer is for service according to law, hut the citation was directed to the defendant, through its said agent, in the city of New Orleans, which is situated iu the Eastern district of this state, and was sent to and served by the marshal of that district.

No provision of law has been cited by plaintiff to sustain this service. Even as to suits of local nature, Congress found it necessary to make special provision for service by the marshal of another district, where the defendant resided in such district in the same state. Section 54 of the Judicial Code (Comp. St. § 1036). Section 51 (Comp. St. § 1033) does permit the bringing of suits, such as this, in the district of the domicile of either the plaintiff or defendant, but this does not enlarge the power of one court to send its process for service in another. As to foreign or nonresident corporations, in the absence of a federal statute, the law of the state is followed for making service; but this does not carry the light to a federal District Court to send its process beyond its territorial limits. See Compiled Statutes Annotated, vol. 3 (1916) p. 2949.

For the reasons assigned, the motion to quash should be sustained, with reservation to plaintiff of the right to have additional and proper service made.