its chief office in that State, was accustomed to make purchases of raw materials, either by correspondence, or by sending an agent there for that purpose, in St. Louis, but had never had a business office in Missouri, and did not maintain an agent there, the Federal court in Missouri declined to entertain jurisdiction of a suit against it in which the process was served upon the general manager, while in St. Louis on a pleasure trip.' This subject was elaborately considered in the able opinion of Judge JACKSON, in United States v. Bell Telephone Co.,' where it was held that the three essential conditions to jurisdiction in personam over a foreign corporation in the Federal courts are: (1) that, as a matter of fact, the corporation is carrying on its business. in the foreign State or district; (2) that such business is managed or transacted by an agent or officer appointed by or representing the corporation in such State; and (3) the existence of some local law making such corporation, or foreign corporations generally, amenable to suit there, as a condition, express or implied, of doing business in the State. It is apprehended that the same general character of transactions by the foreign company within the State, which will cause it to be "found" within the district, within the meaning of the Act of Congress, will amount to "doing business" within the language of the State statutes prescribing conditions upon which the foreign company

1 St. Louis Wire Mill Co. v. Consolidated Barb Wire Co., 32 Fed. Rep. 802. See also Reifsnider v. American Imp. Pub. Co.. 45 Fed. Rep. 433; Elgin Canning Co. v. Atchison, etc. R. Co., 24 Fed. Rep. 866. 229 Fed. Rep. 17.

3 See also Carpenter v. Westinghouse Air-Brake Co., 32 Fed. Rep. 434; Elgin Canning Co. v. Atchison, etc. R. Co., 24 Fed. Rep. 866.

may come into the State, or so as to subject the foreign company to the jurisdiction of the State courts. The discussion of those subjects may be appropriately referred to in this connection.'

§ 308. "Inhabitant" of the District.-Amendatory Act of March 3, 1887.-The Judiciary Act of 1875 was amended by the Act of March 3, 1887, so that the provision discussed in the preceding section was made to read: "No civil suit shall be brought before either of said courts against any person by any original process or proceeding, in any other district than that whereof he is an inhabitant."? The effect of this amendment is to eliminate the alternative provision that the defendant may be sued in districts where "he shall be found.' Consequently a new question was presented as to foreign corporations. For, although the court might hold that a foreign company, by doing business within the district, had thereby consented to be found there, for the service of process, it was quite another matter to hold that it thereby became an inhabitant of the district. The view universally adopted by the Federal courts is that the habitation of a corporation is necessarily in the State under whose laws it exists, and that it can have no other, since it is only recognized in other States and countries upon principles of comity; and consequently, under this statute, that it cannot be sued in a Federal court outside of the State from which it received its charter, notwithstanding it may have its principal offices and do most of its business elsewhere."

1 Ante, §§ 65-74, 212.

224 U. S. Stat. at Large, 552.

3 Filli v. Delaware, etc. R. Co., 37 Fed. Rep. 65; Denton v. International Co., 36 Fed. Rep. 1; County of Yuba v. Pioneer Gold M. Co., 32 Fed. Rep. 183.

§ 309. Act of 1887, Continued-"Residence" of Foreign Corporation.-The same statute further provides that "where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." 1 Under this provision it has been held that the "residence" of a foreign corporation is within the State of its creation; that having an office and doing business within another State will not make that its residence so as to give the Federal courts jurisdiction."

§ 310. Sufficiency of Service.-Under the provision of the Federal statute requiring practice, in civil cases in the Circuit and District Courts, in other than equity and admiralty causes, to conform as near as may be to the existing practice in like causes in the courts of record of the State, it is necessary to look to the local law, prescribing the method of serving a summons on a foreign corporation, to ascertain what constitutes such service, and the effect of it. Where the local statute required service in an action against a corporation to be made on the president, or some managing agent, or in case none of these officers shall reside or have an office in the county where the cause of action arose, then on any clerk or agent of the corporation who may reside or be found in the county, it was held that the right to serve an inferior agent or clerk, in an

24 U. S. Stat. at Large, 552.

+

2 Bensinger, etc. Register Co. v. National Cash Register Co., 42 Fed. Rep. 81; Booth v. St. Louis, etc. Mfg. Co., 40 Fed. Rep. 1; Preston ▼. Fire Extinguisher Mfg. Co., 36 Fed. Rep. 721; Gormully, etc. Mfg. Co. v. Pope Mfg. Co., 34 Fed. Rep., 818.

8 U. S. Rev. St., § 914.

▲ Oreg. Code Civ. Proc., § 54, amended, Sess. Laws, 1876, p. 37.

action in the Federal courts, when the superior ones cannot be found in the district, is limited to cases where the cause of action arose in the district.'

§ 311. Voluntary Appearance.-In determining what constitutes a voluntary appearance, and the effect of it, the Federal courts have regard to the State statutes and the practice of the State courts. But under a provision of the Iowa Code, that "an appearance, special or other, to object to the substance or service of the notice, shall render any further notice unnecessary," it was held that an appearance to object to the "jurisdiction of the court" was an entirely different thing, and could not have such an effect.' If, however, the defendant, in addition to a demurrer to the jurisdiction, on the ground that, being a foreign corporation, it was not "found" within the district, files a further demurrer to the petition on the ground that it fails to state a cause of action, the demurrer to the jurisdiction, must be sustained but the demurrer to the petition is in effect a general appearance to the merits and places the defendant in court. And, as far as any question of jurisdiction over the person is concerned, a defendant foreign corporation, by filing an application for removal into the Federal court, submits itself to the jurisdiction of the court.* See, see, 242.

1 Lung Chung v. Northern Pac. Ry. Co., 19 Fed. Rep. 254. Compare Shampeau v. Connecticut River L. Co., 37 Fed. Rep. 771.

2 Elgin Canning Co. v. Atchison, etc. R. Co., 24 Fed. Rep. 866. Compare York v. State, 73 Tex. 651; St. Louis, etc. R. Co. v. Whitley, 77 Tex. 126. See ante, § 242.

3 Dallmeyer v. Farmers', etc. Ins. Co., 4 Cent. L. J. 464. See also Friezen v. Allemania F. Ins. Co., 30 Fed. Rep. 349.

4 Friezen v. Allemania F. Ins. Co., 30 Fed. Rep. 349, citing Johnston v. Trade Ins. Co., 132 Mass. 432; Clay F. Ins. Co. v. Huron Salt and Lumber Co., 31 Mich. 346; Mohr, etc. Distilling Co. v. Insurance

§ 312. Validity of Service not a Federal Question. Whether process, in an action by the State against a foreign corporation, to recover a penalty for assuming to do business in the State, without first complying with the statutory conditions, was served on a person, who was at the time an agent of the company within the State, on whom process might legally be served so as to bind the company, and bring it within the jurisdiction of the court, is a mixed question of law and fact, which is in no way dependent on the construction of the constitution, or of any law of the United States, and such a case, therefore, is not removable to the Federal courts.1

Co., 12 Fed. Rep. 474; Carstairs v. Mechanics', etc. Ins. Co., 13 Fed. Rep. 823; Dennick v. Railroad Co., 103 U. S. 11; Edwards v. Connecticut Mut. Ins. Co., 20 Fed. Rep. 452; Congar v. Galena, etc. R. Co., 17 Wis. 477; Upper Mississippi Transf. Co. v. Whittaker, 16 Wis. 220.

1 Germania Ins. Co. v. Wisconsin, 119 U. S. 473.