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this case will not be evidence against it for any purpose touching the merits of its claim."

So in this case, notwithstanding the answer of the defendants justifying as agents of the Pioneer Iron Company, the bill made neither the company nor any agent of it as such a party to the proceedings. The mere fact that the claim is made that the Pioneer Iron Company will be concluded can have no effect upon it so long as it has not submitted its rights to adjudication by vol

brought into court by proper process. It is true the defendants claim the charter of the company has been renewed, and that it is still a going corporation. It is conceded that at the date of its origin the Constitution of the state of Michigan prohibited the organization of corporations for a period greater than thirty years. That the supreme court of Michigan did not intend to adjudicate that the Pioneer Iron Company if reorganized was concluded by the decree of the circuit court, is shown by the language used in the conclusion of its opinion:

porting the allegations therein made. The bill proceeds upon the theory that under the laws of the state of Michigan the charter of the Pioneer Iron Company had expired in 1887,-thirty years from the date of its organization; and there was the most care ful avoidance, in the pleadings of the complaint, of any recognition of the existence as a going corporation of the Pioneer Iron Company. It was charged in the bill that its corporate existence had ended, and, so far from making it a party, the complainants refrained from recognizing it as an ex-untary proceedings on its part, or been isting corporation, and the relief sought was against the corporations and persons named and made defendants in their own right, and not as agents of the Pioneer Iron Company, but who were alleged and found to be using the name of that corporation as a cover for wrongful acts of their own. The mere fact that the defendants sought to justify their acts as agents of the Pioneer Iron Company would not warrant the court in awarding a decree against that company or its agents, neither being made a party to the record. Nor, in our opinion, did the judgment rendered have this effect. In the case of Tindal v. Wesley, 167 U. S. 204, 42 L. ed. 137, 17 Sup. Ct. Rep. 770, where a suit was brought in South Carolina to recover possession of certain real property in that state, one of the defendants answered that he had no personal interest in the property except as secretary of the state of South Carolina, in which capacity alone he had acquired the control of the property. It was argued that in that event the suit could not be maintained, because it was in fact an action against the state within the meaning of the 11th Amendment, and the judgment of the court concluded the state. To this contention this court, speaking by Mr. Justice Harlan, made answer:

"It is said that the judgment in this case may conclude the state. Not so. It is a judgment to the effect only that, as between the plaintiff and the defendants, the former is entitled to possession of the property in question, the latter having shown no valid authority to withhold possession from the plaintiff; that the assertion by the defendants of a right to remain in possession is without legal foundation. The state not being a party to the suit, the judgment will not conclude it. Not having submitted its rights to the determination of the court in this case, it will be open to the state to bring any action that may be appropriate to establish and protect whatever claim it has to the premises in dispute. Its claim, if it means to assert one, will thus be brought to the test of the law as administered by tribunals ordained to determine controverted rights of property; and the record in

"The Constitution at the date of its organization and at the expiration of its charter expressly prohibited the organization of corporations beyond the period of thirty years. No provisions then existed, either by the Constitution or by the statute, allthorizing a reorganization of corporations which had expired by limitation. A constitutional amendment was adopted in 1889, authorizing the legislature to provide by general laws for one or more extensions of the term of such corporations, and also for the reorganization 'for a further period, not exceeding thirty years, of such corpo-. rations whose terms have expired by limitation, on the consent of not less than four fifths of the capital.' Pursuant to this authority the legislature in 1889 passed an act authorizing such reorganization. 2 Comp. Laws, § 7035. Very important questions are raised by counsel as to the effect of this reorganization statute, the validity of the act of reorganization by the Pioneer Iron Company, as to whether the Pioneer Iron Company was in position to avail itself of this statute, and also the effect upon the nine-nine-year lease should the reorganization be held to be valid. Inasmuch, however, as these questions are not essential to a decision of the case, we refrain from determining them."

But it is said the supreme court affirmed the decree of the lower court, in which the defendants were enjoined in a representative capacity, and that this includes them as agents of the Pioneer Iron Company, and that when the agents of the company are


enjoined the decree amounts to a judgment | mining thereon. It is utterly inconsistent
against the corporation which they repre- with the proceedings and the decree to en-
sent. But in view of the pleadings, as al- large the judgment so as to include agents
ready stated, and the claim made and in- of the Pioneer Iron Company. If it should
sisted upon by the complainants that there hereafter be insisted that the rights of that
was no Pioneer Iron Company in existence, company or its agents are concluded, a Fed-
we think the language in the decree has eral question might arise if such effect shall
reference to the injunction and order against be given to the decree in this action. In
the corporations and individuals made de- our view of this case there is nothing in the
fendants and their attorneys, solicitors, and proceedings or decree in anywise conclu-
agents, in their representative capacity, that | sive of the rights of the Pioneer Iron Com-
is, as representing the defendants in any of | pany, if it is held to be a living corporation,
the ways mentioned. The decree was ren- or any of its duly authorized agents act-
dered after finding in favor of the com- ing in its behalf.
plainants' theory of the case, and had the
effect to require the defendants to the bill,
their agents and attorneys, to vacate the
premises, and enjoined them from further

We therefore find that no Federal question arises upon this record. The proceedings in this court will be dismissed for want of jurisdiction.

(197 U. S. 436)



C. B. COMBE, Independent Executor of the
Estate of Stephen Powers, deceased; C.
B. Combe, et al.

istrator, recovered in the above-mentioned action at law. The land was occupied without right by the United States as part of the Fort Brown military reservation, and on March 3, 1885, Congress appropriated $160,000 to pay for the land and its use

Federal courts-jurisdiction—ancillary ac- and occupation, but not until a complete


title should be vested in the United States, the full amount of the price to be paid directly to the owners of the property. The next year certain claimants brought suit for the land, in a state court, against Colonel Federal circuit court on the theory that the Kellogg, the officer in command of the rescause is ancillary to an action at law to re-ervation. The suit was removed to the cover the lands from the United States, as occupied without right, in which the rival claimants had united in procuring final judgment in favor of two of their number, leav ing their respective interests to be settled by arbitration.

Jurisdiction of a bill which seeks to reach and distribute to the persons found entitled thereto the proceeds of a sale of lands to the United States cannot be entertained by a

[No. 174.]

United States circuit court, the United States intervened, and, for the purpose of settling the title, set up outstanding rights in third persons. Other known claimants, including Stillman and Carson, as administrator, each of whom claimed an undivided half, became or were made parties. By the local practice the respective shares of the action as well as the principal question of the right of all or some of them to recover from Colonel Kellogg. But on July 13, 1887, most, although not all, of the claimants, including Stillman and Carson, made an agreement on which the jurisdiction in the present cause is based.

Argued March 10, 13, 1905. Decided April the parties might have been determined in


3, 1905.

PPEAL from the Circuit Court of the United States for the Southern District District of Texas to review a decree granting the relief sought by a bill, jurisdiction of which was entertained on the ground that the cause was ancillary to an action at law. Reversed with directions to make restitution to the appellant, and to dismiss the bill.

This agreement recited that the case was likely to be tried the next day, that it was apprehended that unless a perfect title could be adjudged to some of the parties there The facts are stated in the opinion. was danger of losing the appropriation, that Messrs. John A. Garver and James M. in the time available there was little chance Beck for appellant.

of an accurate adjudication of all rights,

Messrs. Fred Beall, J. D. Childs, and that it was primarily desirable to have a C. L. Bates for appellees.

Mr. Justice Holmes delivered the opin

ion of the court:

judgment which would be satisfactory to the department at Washington, and, secondarily, to agree on a method of working out the exact rights of the parties, after judgThis is an appeal from a decree of the cir- ment, conveyance to the government by cuit court, upon the single question of the those adjudicated to be owners, and payjurisdiction of that court. The jurisdic- ment of the money. It also recited the tion was sustained de bene, on appeal from claims of others not parties to the agreea preliminary injunction, by the circuit ment, and the belief of the contractors that court of appeals. 29 C. C. A. 660, 52 U. S. those claims would fail at the trial. ThereApp. 622, 86 Fed. 202. It is certified that fore it was agreed that the parties to the jurisdiction was entertained solely upon the contract would unite in procuring a judgground that this cause is ancillary to an ac- ment for the whole property in favor of tion at law and the final judgment rendered Stillman and Carson, administrator, that therein. If that ground fails, it is appar-upon its being procured a conveyance should ent from the record, and is not disputed, be made by the said owners to the governthat there is no other. To decide the casement, and a warrant for the price upon the it is not necessary to consider anything ex- Treasurer of the United States obtained cept the allegations of the bill, and a large part of those may be laid on one side as not material to the question here.

from the Secretary of War. After a preliminary payment, the rest of the money was to be deposited in a named bank in GalThe purpose of the bill is to reach and veston, to the credit of three arbitrators, distribute, to the parties found entitled to also named. The parties to the agreement the same, the proceeds of a sale to the Unit- submitted their claims to these arbitrators, ed States of land which the defendants Still-with somewhat blind provisions for substiman (the appellant) and Carson, as admin- tution, and the arbitrators were to give

their checks upon the fund to those whom | quent sale, should pay over in due proporthey found entitled, for the sums found due. tion to those equitably entitled. The parThe next day after this agreement was ties gave up their right to have the court made, on July 14, 1887, a verdict was ren- decide who had rights in the land, and the dered for Stillman and Carson, administra-extent of their shares, and substituted a tor, one undivided half to each, and judg-contract and a decision out of court. They ment was entered upon the same, both, it is still rely upon the contract, and they must alleged, by consent of parties. But the next be left to their remedy upon it. steps contemplated by the agreement did It is suggested that the affirmance by the not follow as quickly as anticipated. With-circuit court of appeals of an interlocutory out any fault of Stillman and Carson, they decree appointing a receiver, and issuing a did not get their pay and deliver the deed preliminary injunction against Stillman until April, 1895,-nearly eight years later. and Carson using the judgment for the purAt that time, according to Stillman's an- pose of depriving the other parties in interswer, at all events, before June 14, 1897, est of their rights in the $160,000, in some when this bill was filed, according to the way prejudices the present appeal. It is allegations of the bill, one of the arbitra-enough to say that the action of the circuit tors named was dead, and another refused to act, so that the arbitration agreed upon was impossible in its original form. It also appears from the decree that Stillman had expended large sums in collecting the money from the United States. The bill alleges that Stillman and Carson fraudulently appropriated to their own use the whole fund of $160,000 received from the United WESTERN ELECTRICAL SUPPLY COMStates. It further alleges that they are conspiring fraudulently to prevent a deci

court of appeals was on the appeal of Carson alone, Stillman not having appeared in the action.

Decree reversed, with directions to make restitution to the appellant, and to dismiss the bill.

(197 U. S. 299)

PANY, Plff. in Err.,


sion by arbitration, as agreed, and fraudu- ABBEVILLE ELECTRIC LIGHT & POWlently are using the judgment to deprive the true owners of their rights. On these alle


how raised and decided.

gations the bill seeks not to have the arbi- Error to state court-Federal questiontration carried out, but to obtain a distribution of the fund by the court.

The highest court of a state may decline to reopen, on a second appeal, a question of the validity of the service of summons, which it had upheld on the first appeal, without thereby making a case for a writ of error from the Supreme Court of the United States, where the claim that such service was invalid under the Federal Constitution was first set up on the second hearing in the trial court.

We are somewhat at a loss to add anything to a statement of the case to show how utterly without foundation is the claim of jurisdiction over this bill as an ancillary suit. The bill does not seek either to disturb the judgment or to have anything done towards carrying it out. The judgment was satisfied, and the functions of the court in the former case were at an end, when the land was recovered. Stillman and Carson cannot be using it fraudulently or in any other way. Its uses all are over. The court had Argued and submitted March 14, 1905. Denothing to do with the subsequent sale of the land, and still less with the distribution of the purchase money when the sale was

[No. 178.]

cided April 3, 1905.

N ERROR to the Supreme Court of the

made. There neither was nor ought to have I State of South Carolina to review a

judgment which, on a second appeal, affirmed a judgment of the Circuit Court of Abbeville County, in that state, sustaining the validity of the service of the summons and complaint on an agent of a nonresident corporation. Dismissed for want of jurisdiction.

been any fund in court. It may be that
the judgment would not have been the same
but for the agreement of some of the parties
upon those matters. But the bill does not the
But the bill does not
allege that it was obtained by fraud, and, as
we have said, does not seek to set it aside.
The agreement no doubt put Stillman and
Carson in a position of trust, but, no mat-
ter to whom it was known, it did not make
Stillman and Carson trustees of the court,
as they are called in the bill. It did not
extend the duties of the court beyond the
recovery of the land to seeing that the par-
ties who recovered it, in case of a subse-in error.
25 S. C.-31.

See same case below, 66 S. C. 328, 44 S. E. 952.

The facts are stated in the opinion. Messrs. Lee W. Grant and Ralston & Siddons for plaintiff in error.

Mr. William N. Graydon for defendant

Mr. Chief Justice Fuller delivered the | performed, in the state, against the defendopinion of the court:

The Abbeville Electric Light & Power Company, a corporation of South Carolina, brought this action in the circuit court of Abbeville county, South Carolina, against the Western Electrical Supply Company, a corporation of Missouri, by service of summons and complaint on one George F. Schminke, as agent of the defendant. The complaint alleged that "the cause of action set forth herein arose in this state," and set up the breach of a contract of guaranty in respect of a machine for generating electricity, sold by defendant to plaintiff. Defendant appeared specially, and moved "to set aside the service of the summons herein on the ground that the party served with the summons and complaint herein on the seventh day of November, 1900, was not an agent of the defendant." The motion was heard on affidavits at the February term, 1901, of the circuit court, the service set aside, and the case dismissed for want of jurisdiction.

The circuit judge was of opinion that Schminke was not "an agent in the sense in which 'any agent' is used in the Code." The case was then carried by appeal to the supreme court of South Carolina, and the judgment below was reversed, and the cause remanded for further proceedings. 61 S. C. 361, 55 L. R. A. 146, 85 Am. St. Rep. 890, 39 S. E. 559.

The court held, speaking through Mr. Chief Justice McIver, that under the second paragraph of § 155 of the Code, as amended by an act approved March 2, 1899, the facts being considered in connection with 1466 of the Revised Statutes of 1893, as amended by an act of 1897, the service was good and valid.

In this view the court said: "The case must be regarded as a case in which a domestic corporation, having, as it supposed, a claim against a foreign corporation doing business in this state, arising out of a contract made and to be performed in this state, has undertaken to commence its action against such foreign corporation by serving, personally, within the limits of this state, an agent of such foreign corporation with a copy of the summons; and in such a case we do not think that any authority has been or can be cited, which holds that the state court had not thereby acquired jurisdiction of the foreign corpora


On the other hand, the court held that if the case were one in which the plaintiff, a domestic corporation, had brought its action on a contract not made, and not to be

ant, a foreign corporation, and had undertaken to obtain jurisdiction by the personal service of the defendant's agent within the limits of the state, even then, as it appeared upon the facts that the agent was a representative of the defendant corporation in respect of the transaction out of which the suit arose, and was served while within the state for the purpose of attending to the business of the corporation, the service was a good service.

The case having gone back to the circuit court, defendant, by demurrer, renewed its objection to the jurisdiction, this time "on the ground that subd. 1 of § 155 of the Code, providing for service upon a foreign corporation, and the act of the general assembly of South Carolina amending the said section of the Code by striking out the word contravention of the 5th and 14th Amend'resident,' approved 2nd March, 1899, are in ments to the Constitution of the United States, and on the further ground that the act of the general assembly of South Carolina, entitled 'An Act to Further Prescribe the Terms and Conditions upon which Foreign Corporations May Do Business within this State,' approved the 2nd day of March, A. D. 1897, is in contravention of the 5th and 14th Amendments to the Constitution of the United States."

The demurrer was overruled, and the case went to verdict and judgment on the merits, whereupon it was again taken by appeal to the supreme court. That court declined to express any opinion on the constitutional questions, and affirmed the judgment. 66 S. C. 328, 44 S. E. 952. The court held the question of jurisdiction had already been determined, and that it was not bound to re-examine it. This was, of course, a ground broad enough to sustain the judgment, and as the objection that the state statutes were inconsistent with the Federal Constitution was not raised until the case came on for the second hearing, it is plain that the supreme court could, in its discretion, treat it as coming too late to call for decision. Had that objection been raised in the first instance, and been disposed of, then, inasmuch as the judgment of the circuit court was, at that time, reversed on plaintiff's appeal, the adherence by the supreme court to its prior adjudication as the law of the case, on defendant's appeal, would not, in itself, have cut off consideration of the Federal questions; but it was not so raised, and, as the case stands, we are of opinion that our jurisdiction cannot be maintained. Writ of error dismissed.

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