La Count v. General Asbestos & Rubber Co.

(concurring in result) :

I concur in the result, and in the leading opinion herein; except that I think that the question of the validity of the service of process upon the defendant is not necessarily an issue for the jury, but may be heard by the Circuit Judge on motion upon affidavits, although a compulsory order of reference could not be granted where the question of fact arises upon the pleadings. This is in keeping with the usual practice, and the Court has the power, without a jury, to hear on affidavits and decide the legal issues involved, and arising out of the allegations of the…