5 F. 394 | U.S. Cir. Ct. | 1881
On the twenty-fifth of October, 1876, the plaintiff, John H. Blair, commenced his action against the defendants, "William Turtle and Jesse H. Bull, in the district court of Lancaster county, of the second judicial district of the state of Nebraska. Security for costs of suit was given, whereupon a summons was issued and placed in the hands of the sheriff of the said county for service. The return of the sheriff shows that he made personal service of the summons on both of the said defendants. The summons required the defendants to appear and plead to the petition by the twenty-seventh of November following the date thereof.
The petition seems to show, or at least it is therein alleged,, that in the year 1875 the defendants wrongfully and unlawfully detained and imprisoned the plaintiff in the common jail of Lancaster county; on the railroad cars running on a railroad extending from Lincoln, Nebraska, to Saint Louis, Missouri; at Saint Louis, Missouri; on railroad cars between^, Saint Louis and New York city; on board an ocean steamer plying between New York city and Liverpool, England; and also in England after the plaintiff had there arrived,—for which wrongful and unlawful detention and imprisonment the plaintiff .claims damages in the sum of $25,000.
No'thing further seems to have been done in the case, at least so far as the pleadings were concerned, until the twen
On the twenty-sixth of March, 1879, the plaintiff filed in this court a general demurrer to this plea, which was finally submitted for determination.
The sole question presented for determination under this demurrer is, are the facts stated in the plea sufficient to war
Exceptions were taken by plaintiffs to the form of the defendant’s plea, for the reason, as stated, that such a plea is unknown to the code of practice of this state. Strictly speaking, this may be true, but courts of justice usually look more to substance than to form when the ends of justice will thereby be subserved; and, while this may be in form a plea in abatement, we may nevertheless treat it as a motion to quash the service of the process, as the plea contains all the necessary elements of such a motion. And it matters but little what name is given to the plea, if the matter it contains be well stated, and the matter thereof be true in point of fact. In this instance there is no room left to doubt the correctness of either. The facts are fully and clearly, and, I might add, quite artistically, stated in the plea. The truth of the matters stated is beyond dispute, as the demurrer admits the allegations to be true, and we are to take the statement of the defendants embodied in their plea as absolute verity. In mere personal actions, like this one, courts acquire no jurisdiction over the wrong-doers, or the subject-matter of the controversy, until personal service of process cap be made on one or more defendants, or until the defendants make voluntary appearance in the cause, either in person or by attorney. Before the district court of Lancaster county, the court in which this suit was brought, could have properly proceeded to judgment, it would have been necessary to find these defendants, or- one of them, within the county, where service could have been made. And if the defendants had been found within the jurisdiction of the said court,—that is, within Lancaster county,—and service had then been properly made, under ordinary circumstances the court thus acquiring jurisdiction would proceed to trial and judgment. What is here stated applies only to those who voluntarily come within the jurisdiction of the court, where suit may be instituted and where personal .service is properly had.
But in this case the defendants had been indicted in Lan
See Lagrare’s Case, 14 Abbott’s Pr. R. 336, 344; Ranstead v. Otis, 52 Ill. 30; Williams v. Reed, 29 N. J. Law Rep. 385; Dugan v. Miller, 37 N. J. Law Rep. 182; Iwnean Bank v. McSpeelan, 5 Biss. 64; Steiger v. Bonn, 4 Fed. Rep. 17.
The cases here referred to are abundant authority for the disposition to be made of this plea. They sanction this doctrine and establish the correctness of this proposition, namely: That where a plaintiff in suit brings by force a defendant within the jurisdiction of a court, or induces him by deceitful or fraudulent practices to come within the jurisdiction,
It was claimed, however, that as the defendants had appeared in the state court, had then filed a petition for the removal of the cause to this court, had actually had the. cause docketed here and heard on the plea, that the defendants were stopped from further proceedings on the said plea. It was considered that the cause was properly removed to this court. When the application for removal was made, the cause stood for hearing on said plea. It stood for hearing on the plea when it was first docketed in this court. Hearing was had thereon at the first possible opportunity afforded the defendants. They have contested, step by step, the supposed right of the plaintiff to force them into court in the manner stated. They have waived no privilege and lost no right by thus proceeding. They have a right to dispute and contest the jurisdiction of the court at almost any stage of the proceedings, and, unless' they have in some way waived or forfeited that right, they must be upheld in its exercise, regardless of consequences to either party. It is not believed that this right has in any manner been impaired by the defendants in their first appearance in the cause, nor during any of the subsequent stages of the proceedings.
Tt^e plaintiff can, if he sees proper, have the cause continued and an alias summons issued. But if there is no probability of finding the defendants within the jurisdiction of this court, no useful purpose can be served by its longer remaining on the docket.
Note. See Parrott v. Alabama Gold Life Ins. Co., supra.