The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
This is a motion for an order "that the service of the subpoena, process and complaint herein, on J. F. T. O'Connor, Comptroller of the Currency, wherein said defendant was served by the United States Marshall, in and for the District of Columbia, on the 15th day of March, 1938, be vacated and set aside and that the complaint herein be dismissed as to the defendant on the following grounds. --
"1. Service of process was not had on said defendant in the Eastern District of New York or in the State of New York.
"2. That said defendant is not an inhabitant or resident of the Eastern District of New York, within the purview of Title 28, Section 112, United States Code Annotated, which requires all civil suits to be brought in the District Court of the District whereof the defendant is an inhabitant.
"3. Service of process on said defendant was not made by the United States Marshall for and in the Eastern District of New York.
"4. That said defendant is not a necessary party to this action."
Defendants in their memorandum state that that portion of the motion which deals with the request to dismiss the complaint on the ground that J. F. T. O'Connor is not a necessary party to the suit, is withdrawn without prejudice to a further mortion for that relief.
The defendant, J. F. T. O'Connor, Comptroller of the Currency, has appeared specially herein for the sole purpose of moving to set aside and vacate the service of the subpoena, process and complaint on him. Mr. O'Connor was served by delivering to and leaving with Marshall R. Diggs, Acting Comptroller of the Currency, copies of the subpoena and the complaint in the District of Columbia. Neither Mr. O'Connor nor Mr. Diggs are residents or inhabitants of this District.
Section 51 of the Judicial Code, 28 U.S.C.A. § 112, provides: "No civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant."
The action is one in equity by the stockholders of the National Bank of Ridgewood in New York to enjoin the Comptroller of the Currency and the Receiver from enforcing an assessment levied upon said stockholders.
The complaint alleges that the plaintiffs were stockholders of the bank, and that on or about August 29, 1931, the Richmond National Bank of New York took over the National Bank of Ridgewood. The Richmond National Bank of New York assumed and promised to pay all the National Bank of Ridgewood's liabilities, including liability to depositors, and waived all liability on the part of the National Bank of Ridgewood's stockholders, agreeing that the National Bank of Ridgewood's stockholders were not to be liable for any assessments or otherwise. It was further alleged that depositors of the National Bank of Ridgewood waived all claims against it and became depositors of the Richmond National Bank of New York, and that the agreement and all negotiations leading thereto were had with the consent of the Comptroller of the Currency. It is further alleged that the National Bank of Ridgewood ceased to exist and that the Richmond National Bank of New York continued until the banking holiday in 1933 when it was closed, and that thereafter in November 1933 a Receiver was appointed for the Richmond National Bank of New York.
The question has arisen as to whether or not service of process can be made upon the Comptroller in Washington, D.C. Counsel have cited the following casses: Butterworth v. Hill, 114 U.S. 128, 129, 5 S. Ct. 796, 29 L. Ed. 119; Wilson v. Awalt, D.C., 2 F.Supp. 465; First National Bank of Canton v. Williams, 252 U.S. 504, 40 S. Ct. 372, 64 L. Ed. 690; Adams v. Nagle, 303 U.S. 532, 58 S. Ct. 687, 82 L. Ed. 999; Wegman v. Hulse, D.C., 13 F.2d 206; O'Conner v. Watson, 5 Cir., 81 F.2d 833; Forrest v. Jack, 294 U.S. 158, 55 S. Ct. 370, 79 L. Ed. 829, 96 A.L.R. 1457.
Section 49 of the Judicial Code, 28 U.S.C.A. § 110, provides: "All proceedings by any national banking association to enjoin the Comptroller of the Currency, under the provisions of any law relating to national banking associations, shall be had in the district where such association is located."
A first reading of this section would seem to indicate that this section does not apply to the present action because it refers to proceedings by any "national banking association." Nothing is left of the National Bank of Ridgewood, it went out of existence, according to the complaint, in 1931. The only ones left who could maintain an ...