Schwab v. Mabley

47 Mich. 512 | Mich. | 1882

Cooley,-J.

This case comes before us on appeal from the Superior Court of Detroit. It is a suit in equity, and Christopher B. Mabley, Joseph L. Hudson, Salmon S. Matthews, Bernard Bothschild, Ferdinand Hays and Henry Michaels are named as defendants. The first three were brought in by service of process ; the others were not served and not in any manner brought in, except by their own voluntary action in uniting with the other defendants in a petition for the removal of the case to the federal court. 'That petition was presented in July, 1879, but was denied by the Superior Court on the ground that no case for removal was made by it. The complainant treated the presentation of this petition as a general appearance in the’ ■case by Bothschild, Hays and Michaels, and when the case was ripe for a hearing as to the other defendants, entered a ■decree against them all.

In the case of Frink v. Bentley, which came before us at the present term on facts much resembling these, the decree which complainant had taken without bringing in some of the defendants, was set aside, and the case remanded for ■further action in the court of chancery. The fact which •distinguishes this case from that is the presentation of the petition for removal. Unless uniting in that petition can be considered an appearance in the case, it is conceded that the decree was entered before the case was ready for hearing.

Counsel in support of the decree lay stress upon the fact that in the petition for removal there was no reservation of rights, and no statement that the defendants who had not ■been served with process appeared for the purpose only of moving upon that petition. It is also urged that if the case had been removed all of the defendants would have been before the federal court, and that if it had afterwards been remanded, they must have then been in the Superior Court. But in either event, it is said they would have been in court ■only by means of the presentation of the petition.

Counsel may be correct in supposing that if the case had been removed to the federal court all of the defendants would have been in that court. The purpose of the petition was to put the case in the federal court for the purposes ■of trial and final disposition, and it might well be held that the granting of the prayer of the petition subjected all the •defendants to the jurisdiction of that court. But it does not follow that the defendants were before the Superior Court for the like purposes. Defendants are brought into ■court either by the service of process or some substitute therefor, or by voluntary appearance; and the voluntary-appearance may be either general and for all purposes, or-specially and for some particular purpose. "Where the-purpose to make it special appears, the court cannot enlarge it and make it general, for the extent to which defendant submits himself to the jurisdiction when he thus voluntarily comes in, is determined by his own consent. People v. Kehl 15 Mich. 330; Michels v. Stork 44 Mich. 2.

In this case the defendants who had not been served with process came into court for a single purpose only; and that was, not to give the Superior Court general jurisdiction of their persons, but to object to its jurisdiction, and have the-whole case removed to another court. It is true they didl not expressly say in the petition that they appeared for the single purpose only; but this appears from the petition as-distinctly as if they had done so. The petition had and. could have but the one purpose — to avoid the jurisdiction! of the Superior Court; and that the attempt to do this cannot be held to be a voluntary submission to the jurisdiction!, of that court, is too obvious to require demonstration beyondi what the naked statement affords.

The decree must be vacated, and the case remanded. No. costs are awarded.'

The other Justices concurred.