Page:Harvard Law Review Volume 32.djvu/913

BUSINESS JURISDICTION OVER NONRESIDENTS 877 In the most recent of these cases, Flexner v. Farson,^^ an action of debt was brought in Illinois upon a Kentucky judgment. It appeared that the cause of action on which the judgment was based arose in Kentucky; that the defendants were nonresidents but were, at the time the cause of action arose, doing business in Kentucky as partners through one Washington Flexner as their agent; that service was made upon him after he had ceased to act as such agent; that the defendants did not appear in the action; and that the Kentucky court thereupon rendered judgment against them by default. The Illinois court gave judgment for the de- fendants, which was affirmed on appeal by the Supreme Court of the state. The plaintiff, contending that full faith and credit was denied to the Kentucky judgment, brought the case on writ of error to the Supreme Court of the United States, and that court has affirmed the Illinois judgment.^^ The opinion of the court, delivered by Mr. Justice Holmes, is very brief. After stating the facts, he says: "It is argued that the pleas tacitly admit that Washington Flexner was agent of the firm at the time of the transaction sued upon in Ken- tucky, and the Kentucky statute is construed as purporting to make him agent to receive service in suits arising out of the business done in that State. On this construction it is said that the defendants by doing business in the State consented to be bound by the service prescribed. The analogy of suits against insurance companies based upon such serv- ice is invoked. Mutual Reserve Fund Life Association v. Phelps, 190 U. S. 147. But the consent that is said to be implied in such cases is a mere fiction, founded upon the accepted doctrine that the States could exclude foreign corporations altogether, and therefore could establish this obligation as a condition to letting them in. Lafayette Ins. Co. v. French, 18 How. 404; Pennsylvania Fire Ins. Co. v. Gold Issue Mining b" Milling Co., 243 U. S. 93, 96. The State had no power to exclude the defendants and on that ground without going farther the Supreme Court of Illinois rightly held that the analogy failed, and that the Ken- N. D. Iowa, 1900); Caldwell v. Armour, i Pen. (Del.) 545 (1899); Aikmann v. San- derson, 122 La. 265, 47 So. 600 (1908). But see, contra, Alaska Commercial Co. v. Debney, 144 Fed. i (C. C. A., 9th Circ, 1906); Rauber v. Whitney, 125 Ind. 216, 25 N. E. 186 (1890); Behn v. Whitney, 125 Ind. 599, 25 N. E. 187 (1890); Edwards v. Van Cleave, 47 Ind. App. 347, 94 N. E. 596 (191 1); Green v. Synder, 114 Tenn. 100, 84 S. W. 808 (1904). » 268 111. 435, 109 N. E. 327 (191s). ^ Flexner v. Farson, 248 U. S. 289 (1919).