Forrest v. Pittsburgh Bridge Co.

After the foregoing statement of facts, GROSSCUP, Circuit Judge, delivered the opinion of the Court, as follows: This Court has held that the issue of fact raised by a motion to quash, as in this case, may properly be determined by affidavit. Wall v. Railroad Co., 37 C. C. A. 129, 95 Fed. 398. Subject to some criticism as to form and definiteness, the affidavits submitted show that, at the time of the alleged service of summons, Church did not, in fact, represent the Pittsburgh Bridge Company. This would dispose of the case, but for this argument: That a foreign corporation, having filed its certificate, in pursuance of the Illinois act naming a representative, continues to be suable in the state, by service on such named representative—irrespective [359] of the corporation’s actual withdrawal from the state, or the actual cessation of the agency—until another certificate has been filed setting forth that the person named in the previous certificate is no longer the corporation’s representative. It would, perhaps, be competent, by apt legislation, to make this the layv; but, in the absence of legislation to that end, we do not feel authorized to hold that a foreign corporation may be held to have been found in the state, when it, in fact, at the time, was not doing business in the state; or be held to be represented by an agent, who, in fact, held, at the time, no such agency. We find nothing in the Act of 1897 disclosing any such legislative intent; nor in the Act of 1899, though under certain penalties it provides for notice to the Secretary of State of any change in the name and address of the corporation’s agent or representative. The manifest purpose-of the amendment in the Act of 1899 was to require foreign corporations, doing business in the state, to give notice of any change in the name or address of its agent; but this does not imply that such corporation may not withdraw from business in the state without having given su'ch notice. Under what conditions a foreign corporation may withdraw has not been made the subject-matter, so far as we are advised, of any legislation whatever. The complaint was made at argument that the affidavits in support of the motion were indefinite,—that they were conclusions, rather than statements of fact. Affidavits are always subject, more or less, to this criticism. No application was made in the Circuit Court looking to greater definiteness. It would doubtless have been more satisfactory to take the testimony, upon the issues of fact raised, orally or by deposition—and such method could have been availed of by proper motion—but, on the record presented, no error, in this respect, can be predicated. The decree appealed from is affirmed.