« ПредыдущаяПродолжить »
essential facts to be found in this case: (1) That the claimant was the chief supervisor of elections for the Western district of Virginia; (2) that his account or fee bill was duly presented to the treasury department, as required by law; (3) that the items and amounts of the said account have been disallowed by the said department; (4) that the services charged for in said account have been duly performed by claimant as said chief supervisor. The opinion opens with the statement that the petition is filed by William B. Tinsley, chief supervisor of elections for the Western district of Virginia, under the act of congress of March 3, 1887, to recover fees claimed to be due him, which have been disallowed by the first comptroller of the treasury. Then it gives the amount of these fees,-$1,052.65. The opinion then states each item in detail: (1) Printing blanks for petitions, oaths, and notices, $28; (2) indexing 875 commissions or
, $ appointments of supervisors, $131.25; (3) administering the oath of office to 10 supervisors, $2.50. It is impossible to read what is said of these items without concluding that the court not only passed upon the validity of the charges, but on the fact of the service also. Without this it could not have allowed the charge. In the fourth item, recording and indexing names, etc., of supervisors, the court refers in terms to the evidence, and in doing so states “the facts found from the evidence” (Insurance Co. v. Tweed, 7 Wall., at page 51), and on these facts allows the amount charged,-$755.25. So, with the sixth item, it states the fact that copies of the reports of supervisors were furnished to the United States attorney to be used by him in criminal prosecutions, and adopts the evidence that these copies were furnished by request. Having thus gone into the items of the account in detail, and stating in figures the sum allowed in each item, and the amount of one disallowance, the judgment of the court gives the exact aggregate sum allowed. This takes the case out of U. S. v. Clark, 94 U. S. 75.
It is better practice to state the findings of fact distinctly, and afterwards to set forth the conclusions of law. The statute, however, requires the court to file a written opinion, and to render judgment thereon. When the facts do not seem to be disputed, and when the only questions made are whether the charges are according to the written law, it is difficult in an opinion to pursueany other course than that taken here. At all events, when, as: in this case, the pleadings, exhibits, opinion, and judgment enable. this court to see enough, upon a fair construction, to justify the judgment of the court below, it would push a regard for mere form very far if the cause were remanded solely for the purpose of changing the mode of presenting the conclusions of the circuit court. This assignment of error is overruled. Of the other assignments of error, five go to the several items, and the sixth to the aggregate of them. Each of these has been considered, and the arguments against them, but no error in the ruling of the court has, been seen.
The decree of the circuit court is affirmed.
KINNE et al. Y. LANT.
(Circuit Court, E. D. Michigan. May 13, 1895.)
1. REMOVAL OF CAUSES – MOTION NOTICED AFTER APPLICATION – WAIVER OF
Where, after a petition and bond for removal of a cause from a state court have been filed, but before they have been called to the attention of or passed on by such court, a motion is made therein by the defendant, which is afterwards brought on for hearing in the federal court, the plaintiff waives any irregularity, by seeking an adjournment of the hearing in the federal court for his own convenience, without objection on such
ground. 2. SAME-APPEARANCE.
A petition for removal of a cause from a state to a federal court, which is qualified by a statement that the attorneys for the petitioner appear specially for the purpose of such petition only, does not constitute a gen
eral appearance or cure defects in the service of process. 3. SERVICE OF PROCESS-PRIVILEGE OF SUITOR.
A suitor who has come from his home into a foreign jurisdiction, upon the request of his counsel and for the purpose of consultation with such counsel during the argument of a demurrer, is privileged from the service of process, in any part of such jurisdiction, during the argument and pending a temporary adjournment thereof for the convenience of the court.
This was an action by Edward D. Kinne and Otis C. Johnson, surviving executors of the estate of Lucy W. S. Morgan, deceased, against George Lant, Sr. It was commenced in a court of the state of Michigan, and removed into the federal court by the defendant, who now moves to set aside the service of process.
Lawrence & Butterfield and Bowen, Douglas & Whiting, for plaintiffs.
Fraser & Gates, for defendant.
SWAN, District Judge. This is an action on the case commenced in the circuit court for the county of Washtenaw, on the 26th day of September, 1894, by the service of a summons upon the defendant, by the sheriff of Washtenaw county. On the 28th of September defendant filed his petition in the circuit court for the county of Washtenaw, for the removal of the cause to this court. tition was duly verified, and was accompanied by the bond required by the act of congress of March 3, 1887, and it was qualified upon its face by the statement that the attorneys for the petitioner appeared specially for the purpose of the petition, and not otherwise. The petition was not presented nor called in any manner to the attention of the state court. On the next day the defendant entered, in the state court, a motion to set aside the service of process upon him, on the ground that such service was made while he was in attendance upon this court as a suitor in equity, and during the pendency of a hearing herein in a cause in which the defendant was complainant, and the plaintiffs in this cause, and others, were defendants, and therefore was privileged from the service of process of the state court. This motion was erroneously entitled in the circuit court for the county of Wayne, and carefully disclaimed any and all intention of entering an appearance to the action in the state court, except for the purpose of the motion, and expressly limited defendant's appearance to said purpose only. The notice attached to the motion notified the attorneys for plaintiffs that the motion was entered in the special motion book kept by the clerk of the circuit court for the county of Washtenaw, in his office, in the city of Ann Arbor, in said county, and that the attorneys for the defendant "appeared specially in the cause, for the purpose of said motion only, and that the making of said motion is in nowise a waiver of any proceedings to remove said cause to the circuit court of the United States for the Eastern district of Michigan,” and also that the proceedings for such removal were for the primary purpose of invoking the judgment of said United States court upon the jurisdictional question of said defendant's privilege as a suitor therein, upon the facts set forth in said motion and affidavit. Notice of this motion was duly served upon the attorneys for the plaintiffs in the cause, in the state court, on the day of the filing of the same in said court. On the 2d day of October, 1894, upon defendant's application to the court, the circuit court for the county of Washtenaw made an order removing the cause to this court upon the said petition of defendant. After the filing of the transcript of the record in this court, the motion to vacate and set aside the service of the process made upon defendant, Lant, was noticed for hearing in this court. Upon the application of plaintiff's counsel, the hearing was postponed to meet his convenience, and, at the adjourned time, was duly heard. The defendant, Lant, is a resident of Evansville, Ind., and a citizen of said state. The plaintiffs are citizens of Michigan. At the time of the service of the summons upon defendant, a hearing was in progress in the suit pending in this court, in equity, wherein said Lant is complainant, and the plaintiffs in this cause, and others, are defendants. Under the advice of his counsel, whose affidavit establishes that he required the presence of Lant in the equity cause upon the argument of the demurrer to the bill of complaint filed by him in this court, Lant came into this district, both to attend the argument and also to confer with his counsel, at the latter's request, concerning certain matters of fact connected with said equity cause, and the management thereof. It also appears, by Lant's affidavit and that of his counsel, that he came here, upon that occasion, under the assurance of his counsel, Jasper P. Gates, Esq., that while in the Eastern district of Michigan, for the purposes aforesaid, he would be privileged from the service of legal process, and would be protected therefrom by this court, in which his suit was pending. The demurrer to the bill in equity was heard in part on the 21st of September, 1894, and deponent was present, as he states, pursuant to said advice, and for the purposes above stated. Because of other business before the court, the argument of the demurrer was not concluded, and the further hearing thereof was postponed, under the intimation that the court would hear the conclusion of the ar
gument during the then present week. Lant was adrised by his
Pending the resumption of that
1. The first ground of objection on the part of the plaintiffs to the motion is that the same is not properly before the court, because it was entered in the state court after the petition and bond for removal had been filed; and, coupled with this, it was also urged that the motion, being entitled in the circuit court for the county of Wayne, instead of the circuit court for the county of Washtenaw, was not properly before the court. Both these objections are purely technical, and if they possessed any original force, have been waived by the conduct of plaintiffs' counsel in recognizing them as properly before the court, and requesting postponement of the argument upon the motion, thereby leading the defendant to assume the regularity of the paper and the procedure for the relief prayed. In this view of the matter, it is unnecessary to decide whether the state court lost jurisdiction of the cause by the mere act of filing the petition and bond for its removal, so that the subsequent filing of the motion in that court, before the petition and bond for removal were called to the attention of the state court, was entirely nugatory. It would seem, notwithstanding it has frequently been said in terms “that the filing of the petition and bond for removal deprive the state court of jurisdiction," that some further act would be necessary to work that result, and that it would not be successfully claimed that a party would be entitled to the removal of a cause by the piere deposit and filing of the papers with the clerk of the state court, without advising the court itself of his action, and asking, at least, for the usual order of removal. He could not, for example, sit silently by, and permit the court to dispose of his cause, without insisting upon the rights to which his compliance with the remoral act would entitle him. But inquiry into the effect of the mere filing of the petition and bond is made immaterial by the recognition by plaintiffs' attorneys of the motion as one proper to be heard in this court, and ignoring the clerical error in the name and the irregularity, if any, of filing the motion in the state court, after having filed therein the petition and bond for removal. Had these objections been promptly made, and notified to counsel as objections to the propriety of the motion, a different question would have been presented.
2. The next objection made to the motion is that the filing of the petition for removal was an appearance and a waiver of any objection of the service of process. If the petition for removal had been unqualified, this would doubtless defeat the motion, agreeably to the rule that a general appearance heals all defects in the service of process, but this is not the case here. The petition for removal was signed, “Fraser & Gates, attorneys for said petitioner, who appear herein specially for the purposes of the above petition, and not otherwise.” It is properly conceded by plaintiffs that where a special appearance is entered in the first instance, and limited solely for the purpose of removal, it is not a waiver of defect in the service of process, nor a submission by the party sued to the jurisdiction of the court. The authorities to this effect are numerous: Parrott v. Insurance Co., 5 Fed. 391; Small v. Montgomery, 17 Fed. 865; Miner v. Markham, 28 Fed. 387; Perkins v. Hendryx, 40 Fed. 657; Golden v. Morning News, 42 Fed. 112; Clews v. Iron Co., 44 Fed. 31; Reifsnider v. Publishing Co., 45 Fed. 433; Bentlif v. Finance Corp., 44 Fed. 667; Hendrickson v. Railroad Co., 22 Fed. 569; McGillin v. Claflin, 52 Fed. 657; Railway v. Brow, 13 C. C. A. 222, 65 Fed. 941, 950; Southern Pac. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44; Goldey v. Morning News of New Haven, 15 Sup. Ct. 559.
In Railway Co. v. Pinkney, 149 U. S. 194, 209, 13 Sup. Ct. 859, the question of the effect of a special appearance under the statute of Texas was considered by the court, it being contended in argument that as the statute of that state made an appearance to question the jurisdiction of the court a general appearance, so as to bind the person of the defendant, the statute must be followed in the federal courts in that state.
The court say: “The effect of a statute of a state giving such an operation to an appearance for the sole purpose of objecting to the jurisdiction of the court would be practically to defeat the provisions of the federal statutes which entitle it to the right to have this court review the question of the jurisdiction of the circuit court. Under well-settled principles, this could not and should not be permitted, for wherever congress has legislated on or in reference to a particular subject involving practice or procedure, the state statutes are never held to be controlling. In Harkness v. Hyde, 98 U. S. 476, it was held by this court that illegality in the service of process by which jurisdiction is to be obtained is not waived by the special appearance of the defendant to move that the service be set aside, nor, after such motion is denied by his answering to the merits. Such illegality is considered as waived only when he, without having insisted upon it, pleads in the first instance to the merits."
The court therefore, it being established that the plaintiff in error was never brought before it by any proper or legal process, held the circuit court was without jurisdiction to proceed in the case, and reversed its judgment.
3. The main question argued in support of the motion was the amenability of defendant, Lant, to service of process, he being then in attendance in this district as a suitor in this court. A defendant here as a suitor, and not within the jurisdiction of his residence, is generally privileged from arrest on civil process, and equally from the service of such process while going to and returning from attendance upon the suit to which he is a party, and is entitled to the