Johnson v. Davis ( 1929 )

MORTON, District Judge.

Davis sued Johnson in an action at law which was removed to this court, where it is pending. Johnson has filed against Davis the present bill for discovery in aid of his defense to that action at law. The subpoena of the bill for discovery was, without any order of court, served upon the attorney of record for Davis in the first action. The present question is whether such service is good.

Substituted service is allowed, without express statutory provision for it, in a variety of proceedings (see Foster’s Federal Practice [6th Ed.] § 165); but the weight of opinion is that it must be authorized by order of court (Pacific R. R. v. Missouri Pacific Ry. Co. [C. C.] 3 F. 772, 774, reversed 111 U. S. 505, 4 S. Ct. 583, 28 L. Ed. 498; Johnson-Brown Co. v. D. L. & W. R. R. Co. [D. C.] 239 F. 590; Foster, supra, p. 951). In Gregory v. Pike, 79 F. 520 (C. C. A. 1st) Judge Putnam said: “A departure from the usual method of service of process, such as appears in this caso, involves the exercise of judicial discretion, and something on record to support the judicial determination authorizing it.” Page 522.

The result is that the motion to quash the service is allowed, but not the motion to dismiss ‘ the hill; and • the petitioner’s motion for substituted service, which, being sworn to, is a sufficient affidavit, may be allowed. No costs to either party.