The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 38
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256 FEDERAL + PORTER
what she had told him about submitting the order. If the defendant
afterward decided to accept the money and fill the order, it did this
in New York. I therefore hold that acts of infringement in Massa-
chusetts are not shown.
3. It follows that the service of the subpoena, which was by copy
delivered to "George A. Bath, manager," at the office referred to,
cannot be held due service on the defendant. Though representing
the defendant there for certain purposes, Bath is not shown to have
been its agent in the sense required by section 48.
4. These conclusions require allowance of the motions to quash and
to dismiss. Jurisdiction not appearing, of course, no injunction is to
issue. It is,obviously better, as was remarked in General, etc., Co. v.
Best, etc., Co. (D, C.) 220 Fed. 348, that such litigation should be con-
ducted before a court whose jurisdiction is not open to the possibility
of successful challenge. Since the first-named plaintiff and the de-
fendant are both New York citizens, such a court is readily accessible.
Decrees in accordance with the above may be submitted. The dis-
missal ordered, being for want of jurisdiction, is to be without costs.
HOWIE MINING CO. v. McGARY et al.
(District Court, N. D. West Virginia. February 20, 1919.)
1. JUDGMENT O14(10)-DEFAULT-GnouNDn FoR SETTING ASIDE.
Defendants held not entitled to vacation of a default judgment, en-
tered over a year after return day, although their nonappearance was ap-
parently due to loss in the mails of a letter from their attorney to the
clerk, asking a copy of the declaration when filed, to which no answer
was received, where no further inquiry was made, and under the state
statute, if no declaration was filed within three months, they were en-
titled to nonsuit or dismissal.
2. ARMY AND NAVY O34--SOLDIERS' AND SAILORS' CIVIL RELIEF ACT- CON-
Provision of Soldiers' and Sailors' Civil Relief Act March 8, 1918, 1
200 (Comp. St. 1918, 1 3078'4bb), requiring plaintiff, before entry of judg-
ment against a defendant in default, to file affidavit that he is not in
the military service, construed, and the fact that such affidavit was not
filed held not to entitle defendants, who were not in fact in the service,
to have set aside a default judgment against them.
At Law. Action by the Howie Mining Company against David
McGary and W. E. Covert. On motion by defendants to set aside
judgment by default. Denied.
H. M. Abercrombie, of Baltimore, Md., Fred A. Dolph, of Chicago,
Ill., Clarence E. Martin, of Martinsburg, W. Va., D. B. Evans, of
Moundsville, W. Va., and Frank A. O'Brien, of Wheeling, W. Va.,
John P. Arbenz, of Wheeling, W. Va., for defendants.
DAYTON,DisMtrict Judge. Defendants, under section 4979, Hogg's
W. Va. Code 1913 (section 5, c. 134), have made a motion to set aside
For other cases dee sime topic & KEY-NUMBER int all Key-Numberdd Digests & Indexta
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38827/m1/52/: accessed February 22, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.