The filing by the defendant in an action in a state court of a
petition for its removal to the proper Circuit Court of the United
States does not prevent the defendant, after the case is removed,
from moving in the federal court to dismiss it for want of
jurisdiction of the person of the defendant in the state court or
in the federal court.
Joseph Brow commenced suit in the Circuit Court of Wayne County,
Mich. against the Wabash Western Railway to recover the sum of
twenty thousand dollars for personal injuries (caused, as he
alleged, by defendant's negligence) by the service, September 24,
1892, of a declaration and notice to appear and plead within twenty
days, on Fred J. Hill, as agent of the company, which declaration
and notice were subsequently filed in that court. On the 7th of
October, defendant filed its petition and bond for removal in that
court, and an order accepting said bond, and removing the cause to
the Circuit Court of the United States for the Eastern District of
Michigan and directing the transmission of a transcript of record
was entered.
The petition alleged that the matter and amount in dispute
exceeded, exclusive of interest and costs, the sum or value of two
thousand dollars, and that the controversy was between citizens of
different states; that petitioner was at the time of the
commencement of the suit, and still was,
"a corporation created and existing under the laws of the State
of Missouri, having its principal business office at the City of
St. Louis in said state, and a citizen of the said State of
Missouri and a resident of said state and that the plaintiff,
Joseph Brow, was then, and still is, a citizen of the State of
Michigan, and a resident of the County of Wayne, in said
state."
The record having been filed in the Circuit Court of the
Page 164 U. S. 272
United States for the Eastern District of Michigan, a motion to
set aside the declaration and rule to plead was made in the cause
in these words and figures:
"And now comes the Wabash Western Railway, defendant (appearing
specially for the purpose of this motion), and moves the court,
upon the files and records of the court in this cause and upon the
affidavit of Fred J. Hill, filed and served with this motion, to
set aside the service of the declaration and rule to plead in this
cause and to dismiss the same for want of jurisdiction of the
person of the defendant in the state court from which this cause
was removed, and in this Court."
The affidavit was to the effect that Hill, on September 24,
1892, was the freight agent of
"the Wabash Railroad Company, a corporation which owns and
operates a railroad from Detroit to the Michigan state line, and
was not an agent of the Wabash Western Railway, defendant in this
suit,"
and that, on the day aforesaid, the Wabash Western Railway
"did not own, operate, or control any railroad in the State of
Michigan or have any officers or agent of any description therein,
and did no business and had no property and no place of business in
said state, and that on said day deponent was not a ticket or
station agent of the said defendant nor an officer or agent of the
defendant of any description."
The motion was denied by the circuit court, with leave to
defendant to plead within ten days, and defendant excepted.
Thereafterwards defendant filed a plea in said cause as
follows:
"And the said defendant, appearing and pleading under protest,
and excepting to the refusal of the court to grant its motion to
dismiss, by Alfred Russell, its attorney, comes and demands a trial
of the matters set forth in the declaration of the said
plaintiff."
The cause was subsequently tried, and resulted in a judgment in
favor of Brow for $2,500 and costs. The bill of exceptions sets
forth that then the case came on for trial, the defendant company
protested in open court against being forced to go to trial, and
for cause of protest showed to the court that the defendant was a
corporation organized in the State of Missouri and that, at the
time of the commencement
Page 164 U. S. 273
of this suit, the defendant had no agent, business, property,
officer, or servant in the State of Michigan, and had not been
served, and had not appeared.
The court overruled the protest, and defendant duly excepted. An
instruction embracing the same point was also asked by defendant
and refused, and an exception taken.
A writ of error was allowed from the Circuit Court of Appeals
for the Sixth Circuit, and the cause heard by that court. Among the
errors assigned were the refusal of the circuit court to grant the
motion to set aside the service of declaration and rule to plead,
and to dismiss the cause; the compelling of defendant to go to
trial against its protest, the court having no jurisdiction over
its person, and the refusal of the instruction presenting the same
point. The opinion is reported in 65 F. 941, and fully discusses
the objection to the jurisdiction of the state court over
defendant's person, ruling that the filing of a petition for
removal to the circuit court effected a general appearance, and
that it was too late, after such removal had been perfected, for
it, in the circuit court, to attempt to plead that that court had
no personal jurisdiction over the company by virtue of the process
issued. The case was also considered upon the merits, and the
judgment was affirmed. Thereupon application was made by plaintiff
in error to this Court to issue a writ of certiorari to the circuit
court of appeals, which was granted, and, the record having been
sent up, the cause was submitted on briefs.
Page 164 U. S. 275
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
This was not a proceeding
in rem, or
quasi in
rem, but a personal action brought in the Circuit Court of
Wayne County, Michigan, against a corporation which was neither
incorporated nor did business, nor had any agent or property,
within the State of Michigan, and service of declaration and rule
to plead was made on an individual who was not in any respect an
officer or agent of the corporation. The state court therefore
acquired no jurisdiction over the person of
Page 164 U. S. 276
the defendant by the service. Did the application for removal
amount to such an appearance as conceded jurisdiction over the
person?
We have already decided that when, in a petition for removal, it
is expressed that the defendant appears specially and for the sole
purpose of presenting the petition, the application cannot be
treated as submitting the defendant to the jurisdiction of the
state court for any other purpose.
Goldey v. Morning News,
156 U. S. 518.
The question
"how far a petition for removal, in general terms, without
specifying and restricting the purpose of the defendant's
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"
was not required to be determined, and was therefore reserved,
but we think that the line of reasoning in that case, and in the
preceding case of
Martin v. Baltimore & Ohio Railroad,
151 U. S. 673,
compels the same conclusion on the question as presented in the
case before us.
In
Goldey v. Morning News, MR. JUSTICE GRAY, speaking
for the Court, observed:
"The theory that a defendant, by filing in the state court a
petition for removal into the circuit court of the United States,
necessarily waives the right to insist that for any reason the
state court had not acquired jurisdiction of his person is
inconsistent with the terms as well as with the spirit of the
existing act of Congress regulating removals from a court of a
state into the circuit court of the United States. The jurisdiction
of the circuit court of the United States depends upon the acts
passed by Congress pursuant to the power conferred upon it by the
Constitution of the United States, and cannot be enlarged or
abridged by any statute of a state. The legislature or the
judiciary of a state can neither defeat the right given by a
constitutional act of Congress to remove a case from a court of the
state into the circuit court of the United States nor limit the
effect of such removal. . . . Although the suit must be actually
pending in the state court before it can be removed, its removal
into the circuit court of the United States does not admit
Page 164 U. S. 277
that it was rightfully pending in the state court or that the
defendant could have been compelled to answer therein, but enables
the defendant to avail himself, in the circuit court of the United
States, of any and every defense duly and seasonably reserved and
pleaded to the action 'in the same manner as if it had been
originally commenced in said circuit court.' 156 U.S.
156 U. S.
523,
156 U. S. 525."
In
Martin v. Baltimore & Ohio Railroad, referring
to the provision of the act of Congress of 1887 defining the time
of filing a petition for removal in the state court, it was
said:
"This provision allows the petition for removal to be filed at
or before the time when the defendant is required by the local law
or rule of court 'to answer or plead to the declaration or
complaint.' These words make no distinction between different kinds
of answers or pleas, and all pleas or answers of the defendant,
whether in matter of law, by demurrer, or in matter of fact, either
by dilatory plea to the jurisdiction of the court or in suspension
or abatement of the particular suit or by plea in bar of the whole
right of action, are said in the standard books on pleading 'to
oppose or answer' the declaration or complaint which the defendant
is summoned to meet. Stephen on Pleading (1st Am.ed.) 60, 62, 63,
70-71, 239; Lawes on Pleading 36. The Judiciary Act of September
24, 1789, c. 20, § 12, required a petition for removal of a
case from a state court into the circuit court of the United States
to be filed by the defendant 'at the time of entering his
appearance in such state court.' 1 Stat. 79. The recent acts of
Congress have tended more and more to contract the jurisdiction of
the courts of the United States, which had been enlarged by
intermediate acts, and to restrict it more nearly within the limits
of the earlier statutes.
Pullman Car Co. v. Speck,
113 U. S.
84;
Smith v. Lyon, 133 U. S.
315,
133 U. S. 320;
In re
Pennsylvania Co., 137 U. S. 451,
137 U. S.
454;
Fisk v. Henarie, 142 U. S.
459,
142 U. S. 467;
Shaw v.
Quincy Mining Co., 145 U. S. 444,
145 U. S.
449. Construing the provision now in question, having
regard to the natural meaning of its language, and to the history
of the legislation upon this subject, the only reasonable inference
is that Congress contemplated that the petition for removal
Page 164 U. S. 278
should be filed in the state court as soon as the defendant was
required to make any defense whatever in that court, so that if the
case should be removed, the validity of any and all of his defenses
should be tried and determined in the circuit court of the United
States."
151 U.S.
151 U. S.
686-687.
Want of jurisdiction over the person is one of these defenses,
and to use language of Judge Drummond in
Atchison v.
Morris, 11 F. 582, we regard it as not open to doubt that
"the party has a right to the opinion of the federal court on
every question that may arise in the case, not only in relation to
the pleadings and merits, but to the service of process, and it
would be contrary to the manifest intent of Congress to hold that a
party who has the right to remove a cause is foreclosed as to any
question which the federal court can be called upon under the law
to decide."
An appearance which waives the objection of jurisdiction over
the person is a voluntary appearance, and this may be effected in
many ways, and sometimes may result from the act of the defendant,
even when not in fact intended. But the right of the defendant to a
removal is a statutory one, and he is obliged to pursue the course
pointed out, and when he confines himself to the enforcement of
that right in the manner prescribed, he ought not to be held
thereby to have voluntarily waived any other right he possesses. An
acknowledged right cannot be forfeited by pursuit of the means the
law affords of asserting that right.
Bank v.
Slocomb, 14 Pet. 65. The statute does not require
the removing party to raise the question of jurisdiction over his
person in the state court before removing the cause, or to reserve
that question in respect of a court which is to lose any power to
deal with it, and to decide that the presentation of the petition
and bond is a waiver of the objection would be to place a
limitation upon the jurisdiction of the circuit court which is
wholly inconsistent with the act.
Moreover, the petition does not invoke the aid of the court
touching relief only grantable in the exercise of jurisdiction of
the person. The statute imposes the duty on the state court, on the
filing of the petition and bond, "to accept such
Page 164 U. S. 279
petition and bond and proceed no further in such suit," and if
the cause be removable, an order of the state court denying the
application is ineffectual, for the petitioner may,
notwithstanding, file a copy of the record in the circuit court and
that court must proceed in the cause.
In this aspect, the conclusion is impossible that the party
submits to the jurisdiction of the state court by availing himself
of a right to which he is entitled under the act of Congress, and
which the state court is by that act required to recognize.
It is conceded that if defendant had stated that it appeared
specially for the purpose of making the application, that would
have been sufficient, and yet when the purpose for which the
applicant comes into the state court is the single purpose of
removing the cause, and what he does has no relation to anything
else, it is not apparent why he should be called on to repeat that
this is his sole purpose, and when removal is had before any step
is taken in the case, as the statute provides that "the cause shall
then proceed in the same manner as if it had been originally
commenced in said circuit court," it seems to us that it cannot be
successfully denied that every question is open for determination
in the circuit court, as we have indeed already decided.
The circuit court of appeals held that a petition to remove,
without more, was tantamount to a general appearance, but that this
result could be avoided by a special appearance accompanying, or
made part of, the petition, which would not be waived by or be
inconsistent with the general appearance, because the application
was analogous to an objection to jurisdiction over the subject
matter. We do not concur in this view. By the exercise of the right
of removal, the petitioner refuses to permit the state court to
deal with the case in any way because he prefers another forum to
which the law gives him the right to resort. This may be said to
challenge the jurisdiction of the state court in the sense of
declining to submit to it, and not necessarily otherwise.
We are of opinion that the filing of a petition for removal does
not amount to a general appearance, but to a special appearance
only.
Page 164 U. S. 280
Section 12 of the Judiciary Act of September 24, 1789, c. 20,
required the petition for removal to be filed by the defendant "at
the time of entering his appearance in such state court" (1 Stat.
79), and those words were omitted in the act of 1887, though
probably the omission is of no special significance. Some cases are
referred to, however, which were decided under that section, and
have not been followed under the present statute.
Pollard v.
Dwight, 4 Cranch 421;
Bushnell
v. Kennedy, 9 Wall. 387;
Sayles v. Northwestern
Insurance Co., 2 Curtis 212. These were all cases of
attachment, and of jurisdiction asserted in the state courts
through the levy of the writs. The two last cited were
satisfactorily disposed of in
Goldey v. Morning News.
In
Pollard v. Dwight, it appears that the objection
that the circuit court had no jurisdiction, "the plaintiffs being
citizens of Massachusetts and Connecticut, and the defendants
citizens of Virginia, not found in the district of Connecticut,"
was not raised in the circuit court, but for the first time in the
assignment of errors after judgment in that court, and it was
accordingly held that,
"by appearing to the action, the defendants in the court below
placed themselves precisely in the situation in which they would
have stood, had process been served upon them, and consequently
waived all objections to the nonservice of process."
The judgment of the circuit court of appeals is reversed;
the judgment of the circuit court is also reversed, and the cause
remanded to that court, with directions to grant a new trial,
sustain the motion to set aside the service of the declaration and
rule to plead, and dismiss the action.
MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissented.
