National Typographic Co. v. New York Typographic Co.

44 F. 711, 1890 U.S. App. LEXIS 1919

Opinion

Laoomrk, Circuit Judge.

After a careful perusal of the very able briefs submitted on both sides, and an examination of the decisions which have been rendered in the circuit courts since the passage of the act of 1887,1 have reached the conclusion to abide by the rule laid down in this circuit in Filli v. Railway Co., 37 Fed. Rep. 65, and in the eighth circuit, in Booth v. Manufacturing Co., 40 Fed. Rep. 1, and Myers v. Murray, 43 Fed. Rep. 695, rather than follow the one adopted in the fifth circuit in Zambrino v. Railway Co., 38 Fed. Rep. 449, and in the third circuit in Riddle v. Railroad Co., 39 Fed. Rep. 290. It is unnecessary to add anything to the discussion of the question in the various cases above cited. In view of the language of the supreme court in Insurance Co. v. Francis, 11 Wall. 210; Ex parte Schollenberger, 96 U. S. 377; Railroad Co. v. Koontz, 104 U. S. 5; and Goodlett v. Railroad Co., 122 U. S. 391, 7 Sup. Ct. Rep. 1254,—the safe rule for the circuit courts seems to he to decline jurisdiction in cases such as this.

The motion to set aside service of process is granted as to the defendant the New York Typographic Company, and the other defendants except Starring and Hall. As to the latter, it is denied. Hall is conced-edly a resident of tlie district, and the objections raised on his behalf cannot be decided on this motion. As to Starring, the question of residence is in dispute, and the motion should not he granted where there has been no opportunity to cross-examine him as to the statements in Ms affidavit. As to the other defendants, their non-residence was practically conceded on the argument.