33 Ind. App. 157 | Ind. Ct. App. | 1904
The appellant, in 1888, brought an action against the Baltimore & Ohio & Chicago Railroad Company in the DeKalb Circuit Court, to recover damages for
Such proceedings were had in the United States court that March 2, 1896, the motion of the Baltimore & Ohio Railroad Company to strike out the amended complaint and* to dismiss the cause was overruled, and that court found that the cause was wrongfully removed from the Steuhen Circuit Court to the United States court by that company, and it was ordered that the suit bo remanded to the Steuben Circuit Court, and that the costs occasioned by the removal should be, adjudged against the Baltimore & Ohio Railroad Company. Thereafter a transcript of the proceedings had in the United States court Was, by the plaintiff, filed in the Steuben Circuit Court, and the cause was placed on the docket as a cause pending therein. Afterward, April 21, 1896, the Baltimore & Ohio Railroad Company appeared in the cause specially, and for the purpose of its motion only, and moved to strike from the files the amended complaint filed in the United States court, for the reason that that company was not a party to the suit, that the United States court had no jurisdiction over the cause or over that company, and that the' Steuben Circuit Court had not at any time any jurisdiction over that company. No further proceedings were had in the cause until May 8, 1900, when the motion last mentioned was overruled, and the plaintiff thereupon filed his further amended complaint against the Baltimore & Ohio
The foregoing facts were-in, substance stated by the court below in a special finding, wherein it was further specially found that the Baltimore & Ohio Railroad Company was not a party to said suit of Erank S. Paul against the Baltimore & Ohio & Chicago Railroad Company, or Prank S. Paul against the Baltimore & Ohio Railroad Company, until the filing of the amended complaint in the United States court, except as it may have made itself a party thereto by filing the petition for removal, and in filing the record and proceedings in the United States court; that the Baltimore & Ohio Railroad Company never appeared in the cause of Prank S. Paul against the Baltimore & Ohio & Chicago Railroad Company, or Prank S. Paul against the Baltimore & Ohio Railroad Company, nor authorized anyone else to appear for it in either of said causes, except as hereinbefore set out, and that no summons or other process was ever issued or served upon the Baltimore & Ohio Railroad Company requiring it to appear in either of said causes. .
The subject of the discussion of counsel is the question as to the jurisdiction of the court over the person of the appellee. It is insisted, on behalf of the appellant, that the court below had jurisdiction of the appellee, acquired
It is claimed also that the action of the United States court in overruling the motion to strike out the amended complaint and to dismiss the cause involved the question presented by the plea in abatement afterward filed in the Steuben Circuit Court, and that the action of the latter amounts to permitting a collateral attack upon the judgment of the United States court, and reverses the judgment of that court. Furthermore, it is claimed that the act of the appellee in filing its motion to strike out two of the interrogatories which were filed by the appellant after the filing of the answer in abatement, and its taking an exception to the ruling of the court upon that motion, conclusively showed a general appearance of the appellee to the action.
The appellee was not, in fact, required by the local law or rule of the court to answer or plead to the complaint, but being apprehensive that steps would be taken to hold it responsible, from indications justifying such apprehension, it appeared specially in the state court for the sole purpose of making application therein for the removal of the cause to the United States court. No suit, indeed, was
In the case cited, as in the case at bar, there was a special appearance for the sole purpose of presenting the petition for removal, and it was therefore said that the question was not involved as to how far a petition for removal, in general terms, without specifying and restricting the purpose of the appearance in the state court, might be considered, like a general appearance, as a waiver of any objection to the jurisdiction of the court over the. person of the defendant; and it was held that in case of such a special appearance in the state court, “whether the attempt to remove should be successful or unsuccessful,” the special appearance could not be treated as submitting the defendant to the jurisdiction of the state court for any other purpose. In that ease, also, the defendant, immediately after the action had been removed . into the circuit court of the United States, filed a motion for an order setting aside the summons and the service thereof, it being expressed in this motion that the defendant appeared by its attorney specially for the purpose of applying for such order. The court, saying that irregularity in a proceeding by which jurisdiction is to be obtained is in no case waived by a special appearance of the defendant for the purpose of calling the attention of the court to such irregularity, concluded
In Wabash Western Railway v. Brow, 164 U. S. 271, 17 Sup. Ct. 126, 41 L. Ed. 431, the court Went further and held that the filing by the defendant in an action in the state court of a petition for its removal to the circuit court of the United States, without expressing the purpose to appear specially, does not amount to a general appearance, but to a special appearance only, and does not prevent the defendant, after the removal, from moving in the United States court to dismiss for want of jurisdiction of the person of the defendant, in the state court or in the United States court. See National Accident Soc. v. Spiro, 164 U. S. 281, 17 Sup. Ct. 996, 41 L. Ed. 435; Conley v. Mathieson Alkali Works, 190 U. S. 406, 23 Sup. Ct. 728, 47 L. Ed. 1113; Cady v. Associated Colonies, 119 Fed. 420; Moon, Removal of Causes, §206.
There is no bill of exceptions in this record. It appears, by the court’s special finding, that no proceedings in the cause were had in the United States court by either of the parties, and no orders were made therein by the court until the decision on appeal by the state court, when the amended complaint was filed naming the appellee as sole defendant, the transcript which had been filed in the office of the clerk of the United States court being a transcript of the proceedings and papers in a case of the appellant against another railroad company. The appearance then made by the appellee was expressly special, and limited to the purpose of the motion. On the hearing of that motion, as appears from the special finding, affidavits were presented. The alleged facts stated in those affidavits do not come before this court as facts established and found. It is found only that such affidavits were before the United States court as evidence on the hearing of the appellee’s
The only matter remaining for consideration is the question as to the effect of the filing and the overruling of the
If the interrogatories which the appellee moved to strike out related to the matters presented by the answer in abatement, it is not perceived by us how the making of the motion and the exception to the ruling thereon would change its special appearance, made for the purpose of presenting the matter in abatement alone, into a general
Judgment affirmed.