Harris v. Gland-O-Lac Co. ( 1954 )

211 F.2d 238

HARRIS
v.
GLAND-O-LAC CO.

No. 11913.

United States Court of Appeals Sixth Circuit.

February 19, 1954.

Robert J. Harris, Thorndyke & Becker, Cincinnati, Ohio, for appellant.

Henry B. Street, Curt E. Stern, Cincinnati, Ohio, for appellee.

Before SIMONS, Chief Judge, and MARTIN and McALLISTER, Circuit Judges.

PER CURIAM.

1

Appellant filed his suit in the district court against appellee company, a resident of a foreign state, and caused service of summons to be made upon Joseph Tenge, an agent of appellee company. Appellee moved to quash service on the ground that, under the provisions of Rule 4(d) (3) of the Federal Rules of Civil Procedure, 28 U.S.C.A., Tenge was not a person upon whom valid service, binding on appellee, could be made; and the issue in this case is reduced to a determination of the question whether Tenge was a managing agent of appellee company at the time of the service of summons upon him. The motion was heard in the district court upon the affidavits of appellant and of Tenge; and the district court granted the motion to quash. The uncontroverted proofs submitted by the above-mentioned affidavits disclosed that Tenge was only a salesman, without managerial duties, and that none of his activities resulted in his being a managing agent of appellee company.

2

The judgment of the district court is affirmed.