Tortat v. Hardin Min. & Mfg. Co.

Citations

• 111 F. 426
• 1901 U.S. App. LEXIS 4973

Syllabus

<p>1. Removal op Causes—Time for Application—Void Service of Summons.</p> <p>Where the service of summons on a corporation in an action in a state court is void, the time limited by the state statute for the defendant to appear and plead, and within which it may file a petition for removal, does not begin to run from such service, and it may appear for the purpose of filing such petition at any time, even after judgment has been rendered against it by default.</p> <p>2. Same — Effect of Eilino Petition as Appearance — Motion to Quash Service.</p> <p>The filing of a petition and bond for removal is not such an appearance as precludes the defendant from moving to set aside the service of process after removal, and such a motion filed in the state court before removal, and not. acted on, is properly before the federal court for decision after removal.</p> <p>8. Process—Service on Corporation—Collusion.</p> <p>One H., who was resident manager in South Dakota of an Illinois corporation, in which he was also a director, assigned a cause of action existing in his favor against the corporation to a friend without consideration for the purpose of having suit brought thereon by the assignee for his benefit, and by his direction such suit was brought in a state court, and the summons was served on him as manager of the corporation. Held, that such service was void, H. being the real party in interest as plaintiff.</p>