Opinion
Howard S. Guttmann, of New York City and Abraham Herman, of Pittsburgh, Pa., for complainants.
Patterson, Crawford, Arensberg & Dunn, of Pittsburgh, Pa., for North American Coal Corporation.
GIBSON, District Judge.
The North American Coal Corporation, one of defendants, has appeared specially and moved the court to quash the service of the summons.
The facts, as they appear in part from the affidavit of the deputy marshal who made the purported service, are substantially as follows: The deputy left a copy of the summons and complaint with Charles F. C. Arensberg, Esq., with the common understanding that the latter would learn from defendant whether he was authorized to accept service thereof. Inadvertently, he made return of the summons and complaint, stating that he had left a copy 'with Charles F. C. Arensberg, attorney representing The North American Coal Corporation. ' The intention of the deputy was to secure an acceptance of service from Mr. Arensberg, not to serve him. Later Mr. Arensberg told the deputy that he had not been authorized to accept service, whereupon the summons and copy of the complaint were returned to the deputy marshal at his request.
Under the circumstances as thus far detailed, the alleged service was unquestionably invalid. The counsel for plaintiffs contends that the service was legal. The North American Coal Corporation filed a creditor's bill in this court against the Pittsburgh Terminal Coal Corporation, pursuant to which a receiver was appointed. Later the present plaintiffs filed a petition at No. 20558 in bankruptcy, praying a reorganization of the Pittsburgh Terminal Coal Corporation, which petition was dismissed. In each of these matters Mr. Arensberg appeared as legal counsel for the North American Coal Corporation. His appearance has not been entered in the reorganization proceeding at No. 20716 in bankruptcy, which was instituted after the dismissal of the petition at No. 20558, and is now before the court. The present plaintiffs, in a petition filed in the proceeding under the creditor's bill, sought and obtained permission of the court to institute a suit against the present defendants. When that proceeding was replaced by the present proceeding at No. 20716, the permission was again sought and given. The instant suit is ancillary to that proceeding. Had the North American Coal Corporation appeared in it by Mr. Arensberg, plaintiffs, by petition to the court, might have secured permission to serve its attorney; but no such appearance has been entered and no such permission has been asked. And not even an actual attempt was made to serve the summons upon Mr. Arensberg. Under such circumstances the court is compelled to quash the service of the summons.