The opinion of the court was delivered by: Will, District Judge.
In this diversity case, defendants Cyril C. and John K. Ryan
did not respond with an answer or other plea for more than
four months after they were personally served with a summons
and the complaint herein and for almost three months following
the court's entry, on the plaintiff's motion, of an order of
default against them. Now they have appeared, but only for the
purpose of moving to quash the service made upon them on
October 2, 1962, at their place of business in New York City.
They contend that extra-territorial service was not authorized
by statute, and that they have in no way consented to this
They have not, however, moved to vacate the entry of default.
Plaintiff does not deny that defendants were served outside
this judicial district. Nor does it claim that personal
service in New York was sanctioned by any provision of the
Illinois long-arm statute, Ill. Rev.Stat. 1961, ch. 110, sec.
17, or of any other law, state or federal. Its only contention
is that defendants are raising a question with respect to
venue, an objection to venue is waived if it is not made
seasonably, and such an objection is not made in time when it
is raised long after the expiration of defendants' time to
answer or otherwise plead and after the entry of an order of
Plaintiff misunderstands the nature of defendants'
objection. They are not questioning the Court's venue, i.e.,
the place where this suit may be litigated once defendants are
properly served. See Rensing v. Turner Aviation Corp.,
D.C.N.D.Ill. 1958, 166 F. Supp. 790, 794 (Campbell, J.).
Rather, they are challenging the Court's jurisdiction over
their persons, i.e. the Court's power to adjudicate their
rights and liabilities.
If, in fact, plaintiff is contending that objections to the
sufficiency of process or to the Court's jurisdiction over a
defendant's person must — as with an objection to venue*fn1 —
be raised seasonably or they are waived,*fn2 it errs in this
too. It has long been settled that in personam jurisdiction can
be obtained in only two ways: the voluntary appearance of the
defendant or service of process upon him in strict conformance
with a valid statute so authorizing. See Robertson v. Railroad
Labor Board, 1925, 268 U.S. 619, 622, 45 S.Ct. 621, 69 L.Ed.
1119 (Brandeis, J.). In this case, neither occurred.
Moreover, it is equally clear that no jurisdiction is
acquired over a defendant defectively served merely because he
has full knowledge of the proceedings against him. Wuchter v.
Pizzutti, 1928, 276 U.S. 13, 24, 48 S.Ct. 259, 72 L.Ed. 446.
Rule 12, F.R.Civ.P., provides that a defendant must answer
or otherwise plead "within 20 days after the service of the
summons and complaint upon him." No court has suggested that
this 20 day period begins to run until service has been
effected in a legally permissible manner. Valid service on
these defendants has not yet been made. Accordingly,
defendants' motion is not untimely and must be granted.
The order of default, entered November 7, 1962, was
conditioned upon the Court's having jurisdiction over the
defendants. Since the Court lacked jurisdiction over them, the
default order must be vacated.
An order consistent with the above will be ...