58 F. 1 | U.S. Circuit Court for the District of Western Virginia | 1893
(after stating the facts.) The plaintiff contends that these cases were improperly removed into this court, because — .
First. The petition for removal was not filed “before the defendants were required by the laws of the state of Yirginia, or the rule of the state court, to answer or plead to the declaration, or complaint, of the plaintiff,” as required by section 1 of the act of congress of March 3, 1887, as corrected by the act of August 13, 1888. An examination of the record shows that there was no time, from the institution of these actions to the time when the application for removal into this court was made, at which the defendants were required to plead to the plaintiff’s declaration. There had never been any proper process served on the defendants, or any of them-It is not claimed that there had ever been any personal service of process on them, or any of them. It is admitted that all the defendants were and are nonresidents of the state of Yirginia. _ The circuit court of Wythe county could acquire jurisdiction of these cases only by personal service of process on the defendants, or some of them, or by attaching some property found within the jurisdiction of the court belonging to the defendants, or some of them, and following this up by an order of publication giving notice of the institution of the action and the attachment of the property of the defendants, or some of them. It appears that in this ease no attachment issued until after the rendition of the judgments at the Sep-
“If at the limo of, or after tlie institution of, any action at law for the recovery of * * * damages for a, wrong, the. plaintiff, Ms agent, or attorney shall make affidavit staling that the plaintiff’s claim is believed to be Just * * * a certain sum which (at the least) the affiant believes the plaintiff is entitled to or ought to recover, and stating also * * * to the best of affiant's belief * * * that the defendants, or one of the defendants, is not a resident of this siaie, and has asíate or debts owing to said defendant within the county or corporation where the action is * * * the clerk of the court where the action is shall issue an attachment as the case may require.”
As to an attachment so issned, section 2979 of the Code of Virginia of 1887 provides that when it is “returned executed, if the defendant has not been served with a copy of the attachment, or with process in the suit wherein the attachment issued, an order of publication shall he made against him,” which order of publication section 3231 of the Code of Virginia of 1887 provides shall require the defendants “to appear within 15 days after dne publication thereof, and do what is necessary to protect their interest.” It is very clear that no order of publication requiring the defendants to appear within 15 days after publication (hereof, and do what is necessary to protect their interests, can be made until after an attachment has been issued and levied and return made thereon. If the clerk issue an order of publication without these requirements of the law having been complied with, as was done in these cases, such an order of publication is a mere nullity. “When an order of publication is substituted for personal service, the substituted service of process by publication against nonresidents is effectual only where, in connection with process against the person for commencing the action, property in the state is brought under the control of the court.” Pennoyer v. Neff, 95 U. S. 714.
The second ground urged by the plaintiff for remanding these cases to the state court is that the appearance, of the defendants by counsel at the September term, 1892, of the circuit court of Wythe county, said counsel moving the court to vacate the judgments entered at the September term, 1891, of the court, then moving the court to dismiss the cases because process had not been served on the defendants, and taking a bill of exceptions 1:o the order of the court overruling the latter motion, was such an appearance as to amount to a waiver of notice, notwithstanding the statement; of the defendants’ counsel in ojien court that he appeared only for the purpose of objecting to the jurisdiction of the court. It is clearly settled by the authorities that the special appearance oí a defendant for the purpose of objecting to the jurisdiction of the court on the ground of the illegality of the service of the process, or for any other reason, is not a waiver of the defendant’s right to have his case removed into the federa! court. In these cases counsel for the defendants expressly stated in ojien court that he appeared only for the purpose of objecting to the jurisdiction of the court for want
It is claimed that the taking of a bill of exceptions by the defendants to the order of the court overruling the motion of the defendants to dismiss these cases was a waiver of objection to the jurisdiction of the court. As laid down by Mr. Foster, (Fed. Pr. § 101,) the doctrine of the law is that:
“After a special appearance for the purpose of objecting to tbe jurisdiction has been made, and the objection overruled, the right to insist upon this objection on an appeal is not lost by a subsequent appearance and defense to the suit on the merits.”
In Harkness v. Hyde, 98 U. S. 476, the supreme court of the United States held 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.”
See, also, Farmer v. Association, 50 Fed. Rep. 829.
These cases were properly removed into this court, and the motion to remand them must be overruled.