F)llDEMr.REPORTER,
vol. 44. ,;
tile h!lrdship to the libelant of having to wait so long for the. final decision' of his case, I could not but regard a ruling, which would in effect cut off the right of appeal, as tyrannical, and r therefore deny the motion. I
NON-MAGNETIO
WAllOR Co.v.
ASSOCIATION HORt.OGERE SmSSE GENEVE et al.
OF
(Ootrcuit Oourt, S. D, New York. October 18,1890.)
L
WRITS-SERVICE BY PUBLICATION.
. ,be llierved by pUblication under the judiciary act of 1875,
Ina suit to determine the title to Q patent-right, a non-resident defendant cannot S 8, providing for such service in suits "to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or liEin or cloud upon, the title to real or personal property within the district."
So
'On a motion for service by publication on a foreign corporationl the court cannot determine the question whether it is engaged in business in the dlstrict, and therefote b!lund by service had on its director. .
,.'InEquity. . ,l}:rff8,f(n ;&: Knauth, for complainant. John H.Kitchen, for LACOMBE, Circuit Judge. This is an application for an order directing service of process upon the defendant, a Swiss corporation, by pubThe petition states that the suit is brought to remove a cloud u,pon"tQ.e title .to certain letters patent" which it is claimed are the property ofthe complainant corporation, or rather of its receiver, and which II original letters patentdhe sub,iect-matter involved in this suit,are in possession of [such receiver,]" This statement is not technically accurate. What the suit is concerned with is the title to the patent itself, -to, thepatent-rightj and the mere custody of the letters evidencing the fact such patent-right was originally granted to a particular inventor is immaterial. The petitioner claims that he is entitled to the relief prayed for, under section 8 of the judiciary act of 1875, which provides for such service llpon non-resjdent defendants when the suit is commenced "to enforce any legal or equitable lien upon or claim to, or to remove any incumcloud upon, the .title to real or personal property within the district where such suit is brought." The various cases which were cited by the complainant's counsel interpreting this section are concerned either with,Eeal property, or with such tangible personal property as was susceptible of reduction to actual possession. I cannot satisfy myself that the section covers (or was intended to cover) such incorporeal and intangible ,property as a patent-right, possession. of which must of necessjty, actual, and wh.ich cannot be seized or sold under an
EASTON
HOUSTON &: T.e. RY.: CO.
execution. Stephensv. Cady, 14 How. 5Z8; Stevens 'v. Gladding, 17 How. 4{7. Statutes which undertake to give to courts jurisdiction over nonresidents, who do not come within the district for purposes either of residence or business, should neit be enlarged by too liberal construction, and in the absence of authority I must decline to make the order prayed for.' It seems further from the moving papers that Louis Bornand, who is made a defendant, has been served with process, and has appeared personally. He is a director of' the defendant corporation. 'Complainant asks for an order declaring that the service of process on defendant Bornand shallbe deemed good and sufficient· service on the defendant corporation. If tQat motion is based upon the statute already quoted, it should be de-. nied for the reasons above given. If it is contended that the defendant corporation is in fact engaged in bnsiness in this district, (as the supplementary motion papers seem to indicate,) and therefore service upon the director is service upon the· corporation, that question cannot be settled on such a motion. Unless i,t is raised by a motion On the part of the defendant corporation to set aside the service, it will be properly dis-: posed of when the court comes to enter final judgment.
It al.11.
HOUSTON
& T. C. Ry. Co. et at, (WATERS-PIERCE On. Co., Intervenor.)
(04ircuit Oourt, E. D. TexaB. December I, 1890.) FmAL DeCREe-REHEARING-TIME OF APPLWATION·
. At the term succeeding that at which a decree dismissing an Intervention on the merits, without prejudice, was rendered, there was a final decree in the main cause. Held that, even if the decree dismissing the intervention was not final at its rendition, it became final on the rendering of the final decree in the main causei and therefore, under equity rule 88; "that no rehearing shall be grantea after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the supreme court, but if no appeal lies the petition maybe admitted at any time before the end of the next term of the court, in the discretion of the court," a rehearing on the intervention could not be granted at the third term after the final decree in the main cause was rendered.
In 'Equity. John C. Walker, for the Waters-Pierce Oil Company. Waller T. Burna, contra. PARDEE, J. The Waters-Pierce Oil Company filed an intervention in the above·entitledcause on the 10th day of November, 1886, claiming the sum of $969 as a lien against the trust funds in the hands of the court, arising out of the earnings of the Houston & Texas Central'Railway Company for and on account bf certain oil supplies furnished the Houston & Texas Central Railway Company during the months of uary and February I 1885, and prior to the original a.ppointment of re-. ceiversin this case. This intervention, under a general order of the court theretofore made relative to petitions pro interesae BUO, was dulyre-