94 F. 23 | U.S. Circuit Court for the District of Kentucky | 1899
The plaintiff Philip Donahue begun this action in the state court by filing his petition thereih on April 22, 1897. The plaintiff alleged in his petition'that the defendant was an Ohio corporation, and had its chief office in that state. A summons was issued, and attempted to be executed on various persons alleged, in one capacity or another, to be agents or officers of the defendant. On February 12, 1898, the defendant entered its special appearance, for the purpose and moved the court to quash the various returns on the summons. This motion after hearing was overruled by the state court on February 26, 1898. On March 5, 1898, the following order was made in the case by the state court, namely: “Came defendant by counsel, and filed its answer herein. On motion of defendant, by counsel, it is ordered that this action be and is assigned to March 9, 1898, for trial.” The opening sentence of the answer of the defendant begins as follows: “The defendant, the Oalumet Fire-Clay Company, not waiving its objection to the process herein, but expressly reserving the same, denies that the defendant,” etc.; and then proceeds with a full answer to the merits of the case, as the same had been presented in the petition of the plaintiff as amended. On March 12, 1898, defendant tendered its bill of exceptions, which was allowed, signed by the judge, and made part of the record, covering all the proceedings on the motion to quash the returns on the summons, and disposing of that motion. On May 7, 1898, by consent of the parties, the action was assigned for trial on the 1st of June following. On May 23,1898, on motion of the defendant, by counsel, and on affidavit filed by it, it was ordered by the court that Frank Parsons do per*, sonally appear on June 1,1898, to testify in the action in behalf of the defendant, and not to depart without leave of the court. Parsons was the commonwealth’s attorney, who had conducted the case out of which the action grew. On June 1,1898, by consent of the parties, by counsel, the case was reassigned for trial October 19, 1898. On October 11, 1898, the court, on the defendant’s motion, repeated its former order, requiring the personal attendance of Frank Parsons at the trial to testify for defendant. On October 19, 1898, by consent of the parties, it was ordered that the action be assigned to April 4, 1899, for trial. Philip Donahue having become a lunatic in the meantime, Patrick J. Donahue was appointed his committee on October 22,1898, and on November 2,1898, on his motion, without objection from the defendant, was admitted as a party plaintiff in this action, and permitted to prosecute the same for the benefit of Philip Donahue. On November 5, 1898, plaintiffs moved the court to set aside the order assigning the case for trial on April 4, 1899, and to assign it for trial at the earliest day possible. The court sustained the motion on November 12, 1898, and set the case for trial on February 6, 1899, the defendant excepting to both orders. On January 25, 1899, on motion of defendant, an order similar to previous ones was entered as to the personal attendance of the witness Frank Parsons, an affidavit on behalf of defendant being filed as the foundation for the order. On January 28, 1899, the defendant, having given notice thereof, moved the court for leave to file, and was per-
A large number of authorities are cited by the learned counsel for plaintiffs in support of this contention, but it is believed that in every one of them, with one or two possible exceptions, there was an actual service of process upon the defendant, in due form of law, and the only point to be decided in each of the cases was whether, under the state law and practice, the time fixed for answering had passed before the petition for removal was presented to the state court. In the one authority alluded to as being an exception, which was the case of Goldey v. Morning News, 150 U. S. 518, 15 Sup. Ct. 559, there was not a proper service, and, the court so holding, the
The authorities cited by the plaintiffs have not, for that reason, assisted the court in reaching a proper conclusion in this case, where the objection always insisted upon is that process has never been so served upon the defendant as to give the court jurisdiction of its person. It is contended by the plaintiffs that the long series of steps taken by the defendant after filing its answer, construed and considered in connection with the filing of that pleading, were equivalent to an entry of its appearance in the state court in such form as to bar the right before the defendant applied for the removal of the case to this court; and that having, in fact, answered to the merits, and having so actively pressed for a trial of the issues made, and having taken all the steps above recited to obtain that trial, the defendant must be considered as actually before the state court, and in such form and for such a length of time as to preclude, at this late date, the right to remove the case. But, as indicated, the plaintiffs have cited no direct authority to maintain this position, nor has the court been able to find any, although originally much inclined^ to think that the motion should prevail, because of an impression that as defendant could, at any time within 14 months previous to doing so, have removed the case so that a motion to quash the returns on the summons could have been passed upon here (Railway Co. v. Brow, 164 U. S. 271, 17 Sup. Ct. 126), it should not have appeared to speculate upon its chances, and have acquiesced so long in the jurisdiction of the state court. But, on looking into the authorities, the court is entirely satisfied that this first impression was° erroneou's, and that it was competent for the defendant to pursue the course it did in the state court, without losing its right to remove the case. There has never been a 'time when the defendant did not contest the validity of the service of the summons upon it. It did so at the outset, by entering its special appearance for that purpose only, and moving to quash the returns. This motion being denied by the state court, and a proper bill of exceptions having been allowed and signed by the judge, and made part of the record, the defendant, on March 5, 1898, filed its answer, but expressly reserved therein its right to insist upon the validity of the service, and expressly declined to waive that right. Steps looking to a trial of the case, and preparing for it, were, it is true, taken by both parties before the defendant filed an amended answer, in which it again vigorously insisted upon the proposition that it was not legally before the court, because of the want of proper service upon it of the summons. A demurrer to this pleading being sustained, due exception was taken. Some time after this last step, the court of appeals of the state having ruled upon a similar point, the defendant again moved to quash the returns upon the summons,- and this time succeeded.
Pending an attempt to secure an amendment of the returns, and a motion to quash that also, when made, the defendant removed the case.
In the opinion of the court, the effect of the special appearance originally made ran along with, and inhered in, all the subsequent
In short, a defendant does not lose his right of removal, unless, after due and proper service of process, he delays to file his petition therefor until after the time for answering, as fixed by the state law, has passed; nor probably unless, after a full and unrestricted appearance, in the first instance, in the state court, without due service of process, he delays petitioning for a removal beyond a time equivalent to that allowed by law for answering. Certainly this must be true in the case at bar, unless the conduct of the defendant in the state court was a waiver of its objections to the service of the process, and operated as a consent to the jurisdiction claimed over its person. The court cannot so read the record as to perceive any such waiver or consent. All that defendant did was under the duress of a proceeding it always insisted was void. What it did was not, in any fair or legal sense, voluntary.
In the case of Harkness v. Hyde, 98 U. S. 476, the supreme court said:
“The right of the defendant to insist upon the oh.iection to the illegality of the service was not waived by the special appearance of counsel for him to move the dismissal of the action on that ground, or, what we consider as intended, that Hie service be set aside, nor, when that motion was overruled, by their answering for him to the merits of the action. 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 hereby compelled to answer. He is not considered as abandoning his objection because he does not submit to further proceedings without contestation. It is only where he pleads to the merits in the first instance, without insisting upon the illegality, that the objection is deemed to be waived.”
This proposition was reaffirmed in the case of Railway Co. v. Pinkney, 149 U. S. 207, 13 Sup. Ct. 859, and practically to the same effect are the cases of Pacific Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, and In re Atlantic City R. Co., 164 U. S. 635, 17 Sup. Ct. 208, where it was held that, where a demurrer was filed for the express purpose of raising an objection to the jurisdiction, a subsequent answer to the merits did not waive that objection. The basis of the doctrine is that the defendant does not appear voluntarily, but under a degree of compulsion, when having made, as strenuously as possible in the first instance, objection to the service of the process, he yields to answer to the merits. Particularly must this be so when, as in this case, he repeatedly reiterates, emphasizes, and insists upon his protests against the jurisdiction and the manner of bringing him into