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A special appearance by a defendant in a federal court for the purpose of moving to quash an attachment issued and levied in the cause, on the ground that the court was without jurisdiction of either the defendant or of the property attached, does not constitute a general appearance to the action.

[Ed. Note.For cases in point, see vol. 3, Cent. Dig. Appearance, $$



Cars owned by a steam railroad company and delivered by it to other companies, loaded with freight, to be used in the transportation of such freight over their lines to points of destination in other states, and then returned within a reasonable time, either loaded or empty, to the owner in the state where received, pursuant to agreements between the companies for the continuous carriage of interstate shipments of freight, as authorized by Rev. St. § 5258 [U. S. Comp. St. 1901, p. 3564], and in conformity to the policy of the statutes regulating interstate commerce, are, until their return to the owner, instruments of interstate commerce, and are not subject to attachment under the laws of a state into which they may be carried by such other companies.

[Ed. Note.--For cases in point, see vol. 5, Cent. Dig. Attachment, $



The validity of a law of the state, so far as it relates to or may operate upon matters within the exclusive control of Congress, is determined by its effect upon such matters when enforced, and not by the purpose for



Sums due to a railroad company from other companies as its share of freight collected by them as the terminal or final carriers on continuous interstate shipments are not subject to attachment by garnishment of the debtors under the foreign attachment laws of another state in which the de

fendant cannot be personally sued. On Motion to Quash Attachment and Service of Process. The plaintiff, a citizen of Iowa, as administrator of the estate of Frank E. Jandt, deceased, filed in the district court of Iowa in and for Woodbury county a petition against the defendant railway company, asking judgment against it in the sum of $10,000 for the alleged wrongful and negligent killing of the deceased in the state of Illinois while a passenger on one of its trains in that state. An order was allowed by a judge of that court authorizing the attachment of property of the defendant company not exceeding $15,000 in value. Thereupon writs of attachment were issued to the sheriffs of Woodbury and Pottawattamie counties in the state of Iowa, and thereunder 22 freight cars of the defendant railroad company, while in the possession of nine other railroad companies, who had severally brought one or more of such cars into the state of Iowa, were attached by said sheriffs in Pottawattamie and Woodbury counties, and said railroad companies were also attached as garnishees of the defendant company, and required to appear and answer in said district court of Woodbury county. The defendant was not served in the state of Iowa with notice of the filing of said petition, the commencement of said action, or of any of the proceedings under said writs of attachment, but was served with such notices at its office and principal place of business in Cincinnati, Ohio. The defendant appeared specially in the state court for the purpose of removing said cause to this court, and in due time did so remove the same on the grounds of the diverse citizenship of the plaintiff and the defendant. The record has been filed in this court, and the defendant appears specially, and moves to set aside the service of the notices upon it, and to quash the writs of attachment and the proceedings thereunder, upon the ground that the state court by the proceedings therein acquired no jurisdiction of the defendant or of its property, and that this court has none, for the reason that the defendant is, and was when the proceedings were commenced, a corporation created and existing under the laws of Ohio and Indiana, and not under the law of Iowa: that it does not and did not own or operate any railroad in Iowa, did no business in that state, and had no officer or agent in said state upon whom process could be served, and that none was served upon it in said state of Iowa; that the cars attempted to be seized under said writs of attachment and garnishee process were loaded with property upon defendant's line of railroad outside of the state of Iowa, to be carried without change of cars to points within that and other states, and were delivered by the defendant outside the state of Iowa to the several garnishee companies which are connecting carriers with the defendant, pursuant to agreements with each of them for the formation of continuous lines of railroad for the transportation of property from one state to and through others over their respective roads, pursuant to the acts of Congress so authorizing'; that the cars in question were brought into the state of Iowa by said several garnishees, pursuant to such agreements, for the purpose only of completing an interstate shipment of the property with which they were loaded, and when emptied were to be returned to the defendant company in the state of its incorporation, or, where the cars were delivered to said garnishees, as soon as it could reasonably be done; that said several garnishees, under the agreements between them, the defendant, and each other, had the right to use the cars of this defendant in the transportation of property in the regular course of business while returning said cars; in other words that said cars at the time of their attachment were being used by the defendant and its connecting carriers, the said several garnishees, in interstate commerce; that all of the indebtedness, if any, that might be due the defendant from said several garnishees is solely and only by reason of the contracts and agreements heretofore stated, and that such agreements and contracts are to be discharged, satisfied, and settled only in the city of Chicago, state of Illinois, where the same were made, and that such accounts or debts, if any, in favor of this defendant have no situs in the state of Iowa, and are not subject to attachment in that state. The motion is supported by the affidavit of an officer of the defendant, which sets forth in detail the facts above stated. Each of said garnishees severally answered under oath in the state court, admitting that it had cars of the defendant in its possession, but alleged that, said cars were delivered to it by the defendant at points outside the state of Iowa, loaded with freight consigned to points within that or other states, and were brought into that state by it in the regular course of its business in the transportation of property between the states; that said cars were so received by it from the defendant pursuant to an agreement between it and the defendant company for the purpose of forming continuous lines of railway for the transportation of property between different states, and for the interchange of cars and traffic between them, substantially as alleged in the motion of defendant to quash the attachment, and to release said cars and the several garnishees therefrom. Some of the garnishees deny being indebted to the defendant in any sum, and others allege that, if any indebtedness is due to the defendant from them, it is on account of the interchange of traffic between them and defendant, as alleged, which account was constantly changing from amounts due defendant to amounts due from it to the garnishee; and that if upon a settlement thereof anything was found to be due to defendant, it was so due in Chicago, where the agreement was made, or at the principal place of business of the defendant in Cincinnati, Ohio, and not in the state of Iowa. The railroads of the defendant and the several garnishees are operated by steam, and each of the garnishees except one is a foreign corporation, and all operate their roads in Iowa and other states, and have agents in Iowa upon whom process may be served, as provided by section 3529, Code Iowa 1897.

The plaintiff filed in the state court a pleading, as authorized by the statute of Iowa, but not under oath, taking issue upon the answers of the several garnishees, and in such pleading denies generally the answers of said garnishees except as admitted or otherwise answered by said pleading. It is admitted that said cars were delivered to the several garnishee companies for the purpose of completing an interstate shipment of the property with which they were loaded; but it is not alleged that either of the garnishee companies has in its possession or under its control any property of the defendant other than said cars, or that either is indebted to the defendant in any sum other than for its proportionate share of the compensation for the carriage of said property from the point of shipment to its destination, which the garnishees may have collected at said destination as the terminal or final carriers of such interstate shipment. It is also alleged that some of the cars at the time that they were attached were empty.

The plaintiff resists the motion to quash the writs of attachment and proceedings thereunder, upon the grounds: (1) That the state court rightly acquired jurisdiction of the defendant's cars, because they were within the state of Iowa at the time of their attachment; and (2) that the defendant has appeared in this court, and moved to quash the attachment proceedings, and has thereby waived its special appearance, and submitted itself and its attached property to the jurisdiction of this court. No evidence is submitted by the plaintiff in opposition to the motion of the defendant to quash the attachment, or in support of its pleading controverting the answer of the several garnishees, and the matters are submitted upon the record, including such motion and admissions of the pleadings.

Wilbur Owen and Bevington & McVey, for plaintiff.
Shull & Farnsworth, for defendant.

Wright & Call, J. C. Davis, Clark & McLaughlin, W. S. Kenyon, Henderson & Fribourg, J. W. Hallam, W. A. Kelly, and John N. Baldwin, for the several garnishees.

REED, District Judge (after stating the facts). The removal of the case by the defendant from the state court, even if its appearance in that court had not been limited to such purpose, does not preclude it from challenging in this court the jurisdiction of the state court or of this court of its person, or from claiming exemption from being sued in a state other than that of its residence. Wabash Western Railway Co. v. Brow, 164 U. S. 271, 17 Sup. Ct. 126, 41 L. Ed. 431; Murray v. Wilcox, 122 Iowa, 188, 97 N. W. 1087, 64 L. R. A. 534, 101 Am. St. Rep. 263.

The contention of the plaintiff is that the defendant by moving to quash the attachment, though appearing specially for that purpose, thereby invoked the judgment of the court upon a question other than that of its jurisdiction of the person of the defendant, and that by so doing it has appeared generally to the action. The question of the jurisdiction or right of a court to attach property at all, and that of its right to determine what disposition shall be made of property that it has the right to and has in fact attached, are quite distinct. In the one case the court can only determine its jurisdiction or right to attach the property, and, if it has not such right, then to order its release in case it has been attached; but if it has the right to attach the same, and has in fact done so, then it may and must determine the rights of claimants thereto if any are presented. The motion of the defendant to quash the attachment presents the former of the above questions, and challenges the jurisdiction of the court to attach its cars upon the ground that they were, when attached, an instrumentality used by it and its connecting carriers in interstate commerce, and it limits its appearance specially for such purpose. Does the defendant by invoking the judgment of the court upon such question waive its special appearance to thus challenge the jurisdiction of the court, and thereby appear generally to the action? Section 3541 (3) Code Iowa 1897, is relied upon as supporting the contention of the plaintiff. That section provides “that an appearance . by the defendant * * *

for any purpose connected with the case renders any further notice unnecessary.” In Chittenden v. Hobbs, 9 Iowa, 417, it is held under this statute that an appearance by the defendant to quash an attachment was a general appearance to the action, and rendered notice of the suit unnecessary, but it is plainly indicated in the opinion of the court that if the appearance had been special for the purpose of objecting to the jurisdiction of the court, it would not have had the effect that was given to it. If an appearance to object to the jurisdiction of the court over the person or property of the defendant has the effect of conferring such jurisdiction, then a defendant is effectually precluded from ever presenting such question for determination, for his appearance to do so would defeat the very purpose for which he appears and confers the jurisdiction. Such could not have been the purpose of the statute. This section is the same as section 2840 (3) of the Revision of 1860, and from the note to that section it appears that its purpose was to prevent appearances for the purpose of objections to the substance or manner of the service. But this is quite different from an appearance to object to the jurisdiction of the court. Spurrier v. Wirtner, 48 Iowa, 486; Cibula v. Pitts Co., 48 Iowa, 528. In Murray v. Wilcox, 122 Iowa, 188, 97 N. W. 1087, 64 L. R. A. 534, 101 Am. St. Rep. 263, it is held that this provision of the statute has no reference to an appearance, though general, by a nonresident defendant to claim that he was exempt from service at the time process was served upon him in this state. The court says:

“In enacting this statute, and in authorizing suit against a nonresident in any county of the state where found, the Legislature had no thought of interfering with a rule concerning exemption from service of notice."

See, also, Wilson v. Donaldson, 117 Ind. 356, 20 N. E. 250, 3 L. R. A. 266, 10 Am. St. Rep. 48, and cases cited, and Atchison v. Morris (C. C.) 11 Fed. 582-585.

In Harkness v. Hyde, 98 U. S. 476–479, 25 L. Ed. 337, it is said:

“Illegality in a proceeding by which jurisdiction is to be obtained is in no case waived by the appearance of the defendant for the purpose of calling the attention of the court to such irregularity. Nor is the objection waived when being urged it is overruled, and the defendant is thereby compelled to answer.

It is only when he pleads to the merits in the first instance, without insisting upon the illegality, that the objection is deemed to be waived."

In Goldey v. Morning News, 156 U. S. 518–523, 15 Sup. Ct. 559, 39 L. Ed. 517, it is said:

“The removal of a suit into the Circuit Court of the United States does not admit that it was rightly pending in the state court, or that the defendant



could have been compelled to answer therein, but enables the defendant to avail himself in the Circuit Court of the United States of any and every defense duly and seasonably reserved and pleaded to the action, in the same manner as if it had been originally commenced in said Circuit Court."

And in Railway Co. v. Brow, 164 U. S. 271–278, 17 Sup. Ct. 126, 41 L. Ed. 431, it is said:

"We regard it as not open to doubt that the party has a right to the opinion of the federal court on every question that may arise in the case, not only in relation to the pleadings and merits, but to the service of process; and it would be contrary to the manifest intent of Congress to hold that a party who has the right to remove a cause is foreclosed as to any question upon which the federal court can be called upon under the law to decide.”

Construction Co. v. Fitzgerald, 137 U. S. 98, 11 Sup. Ct. 36, 34 L. Ed. 608, is clearly distinguishable from the above cases; for in that case the defendant appeared generally to the action and proceeded into the third day of the trial before raising the question of the jurisdiction of the court over the person, and its jurisdiction over the attached property was at no time challenged. Held, that by such appearance and participation in the trial the defendant waived all questions of service of process, and converted into a personal suit that which befoić was but a proceeding in rem.

The defendant appeared specially in the state court for the purpose of removing the cause to this court, and in this court limits its appearance to the purpose of showing that the state court acquired no jurisdiction of its person by the service of process upon it in the state of Ohio, and that its property attached under the process of the state court was not subject to such attachment.

Such appearance, under the authorities above cited, is not a general appearance to the action.

The remaining question is, was the property of the defendant subject to attachment by the state court?

Section 3876, Code Iowa 1897, provides: "That the plaintiff in a civil action may cause the property of the defendant not exempt from execution to be attached at the commencement of or during the progress of the proceeding * * “Section 3877.

And in all cases the proceedings relative to the attachment are to be deemed independent of the ordinary proceedings, and only auxiliary thereto."

“Section 3929. A motion may be made to discharge the attachment or any part thereof at any time before trial

for any cause making it apparent of record that the attachment

* should not have been levied upon all or on some of the property held.”

Under this last-named section it is held by the Supreme Court of Iowa that it may be made “apparent of record that the attachment should not have been levied upon all or some of the property" by affidavits in support of the motion to discharge. Wilson v. Stripe, 4 G. Greene, 551, 61 Am. Dec. 138; Hastings v. Phænix, 59 Iowa, 394, 13 N. W. 346; Cox v. Allen, 91 Iowa, 462, 50 N. W. 335.

It very clearly appears from the affidavit in support of the motion to quash the attachment that at the time the cars of defendant were delivered to the several garnishees there were existing agreements between the defendant and said garnishees for the continuous carriage




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