| U.S. Circuit Court for the District of Arkansas | May 18, 1909
(after stating the facts as above). 'In the argument counsel for defendant Neff urged the answer was filed before the “special plea” was heard, because, as they supposed, a decree pro confesso could be taken against his client in the absence of an answer. He seems to have overlooked rules 19, 33 and 34 of the Supreme Court of the United States, which clearly indicate the practice. But if a decree pro confesso was proper at all under the condition of the pleading when the answer was filed, it would have been set aside if taken before the hearing of the special plea, certainly on presentation of a meritorious defense. I think the filing of an answer to the merits, notwithstanding the hearing of the special plea had hot been disposed of, was a waiver of all irregularities in the service, indeed a waiver of service itself, and put the defendant.Neff in court, if- indeed he, was not already there, which I do not find it necessary to determine. Under the strict practice of the English chancery courts it might be contended with much force that the special plea, itself was a general appearance, but there is no necessity for determining that question now. The correct practice, I think; is laid down by Judge Hammond in Romaine et al. v. Union Insurance Co. et al. (C. C.) 28 F. 625" court="U.S. Cir. Ct." date_filed="1886-08-09" href="https://app.midpage.ai/document/romaine-v-union-ins-co-8125560?utm_source=webapp" opinion_id="8125560">28 Fed. 625 (an equity case), where it is practically held that leave should be first had from tbe court to appear especially and file motion to quash service where it is for any cause irregular. This was the practice observed in Union Guarantee, etc., Co. v. Craddock, 59 Ark. 595, 28 S.W. 424" court="Ark." date_filed="1894-11-17" href="https://app.midpage.ai/document/union-guaranty--trust-co-v-craddock-6543315?utm_source=webapp" opinion_id="6543315">28 S. W. 424 (near bottom of page). But this question is not decided, and perhaps under the modern practice a special appearance might be had (certainly in common-law cases under codes like that of Arkansas) without first obtaining leave from the court. In this case, however, there was no service, but appearance by attorney, who, it is alleged, had no authority to appear. I do not think that question should be
“Coinés and moves tlie court here to dismiss the bill of the plaintiff for want of .jurisdiction aiiparent on the face of it, and for causes for such motion showed (among others): (1) The bill does not aver the citizenship of the plaintiff, nor does it show such facts in regard to tlie citizenship or residence of the defendant as gives the court, jurisdiction. (2) The plaintiff shows by liis bill that he has an adequate remedy at law.”
Judge Bradley, whose learning adorned every subject he touched, said this:
“In this case Andrews was a necessary party, and lie was not a resident of the district, and was not served with process, but he did voluntarily appear. It is true that as soon as ho appeared he moved a dismissal of the bill on two grounds: (l) That it did not show such facts in regard to the citizenship or residence of the defendants as to give the court jurisdiction. (2) That it contained no equity. Whether, if he had made the motion oil the first ground alone, he would have waived his personal exemption, it is not necessary to decide. Ilis moving to dismiss for want of equity was clearly a waiver; and he was properly required to answer the bill.”
That cause differs from this, it is true, in this: that the same motion which went to the jurisdiction went also to the merits. In this case the answer was not filed until two days after the “special plea.” The plea was intended to get rid of an unauthorized appearance, and the answer was itself an appearance. They were absolutely inconsistent, and the answer destroyed the plea; it waived all questions of
. The conclusion is that the special plea must be overruled, and it is ¡o ordered.