Sayles v. Erie Ry. Co.

21 F. Cas. 604, 2 N.J. Law J. 212, 1879 U.S. App. LEXIS 2073

• Court: U.S. Circuit Court for the District of New Jersey
• Decided: May 23, 1879
• Status: Published

Opinion

NIXON, District Judge.

Plaintiff failed to reply to the plea or set down the same for hearing on succeeding rule day. It is true that under rule 38 defendant was entitled to have the bill dismissed. But the rule authorizes a judge in his discretion to allow plaintiff further time. Defendant has waited so long before entering order for dismissal or moving for a rule that he must be deemed to have waived his rights, and the case must stand for decision on merits of plea. The only question raised is whether the court can acquire any jurisdiction over defendant in view of the conceded fact that it is a foreign corporation located in and created by the laws of the state of New York. The bill avers that it is carrying on the business of operating a railroad and using railroad cars within the state of New Jersey. Such a corporation is found here for the service of process, and the local law defines how and upon whom the service may be made. Bev. St. N. J. tit. “Corporations.” § 8S. The recent case of Williams v. Empire Transp. Co. [Case No. 17,720], departed from the former rulings in this court in proceedings against foreign corporations in obedience to the au-. tliority of the supreme court of the United States in Railway Co. v. Harris, 12 Wall. [79 U. S.] 65, and Ex parte Schollenberger, 96 U. S. 369. The plea is overruled, and 30 days is allowed the defendant within which to answer the bill on the merits.