Where the state court decides that, under the law of the state,
the constitutionality whereof is not attacked, the action of
defendant in giving replevy bond and answering amounted to a
general appearance and waiver of objection to jurisdiction based on
a federal ground, the ruling of general appearance rests on a
nonfederal ground sufficient to sustain it, and cannot be reviewed
by this Court. Where plaintiff in error did not set up in the state
court the contention that the contract of interstate shipment
should be construed according to the act of Congress regulating
interstate shipments instead of by the law of the state where made,
but, on the contrary, contended that it should be construed by the
law of the destination and trial of the case, the record presents
no federal question properly set up in the court below that can be
considered by this Court.
Writ of error to review 3 Ga.App. 400 dismissed.
The Cincinnati, New Orleans & Texas Pacific Railway Company
-- hereafter referred to as the Railway Company -- is a corporation
organized under the laws of Ohio, and operates lines of railroad in
several states other than Georgia.
On May 14, 1907, Pless & Slade, a partnership, asserting a
claim against the railway company, resulting from the alleged
negligent carriage of a car load of horses and mules, received at a
point in Kentucky for through carriage to Pless & Slade at
Cordele, Georgia, procured an attachment to be issued from the City
Court of Cordele, under which a box car belonging to the company
was seized. The railway company gave "a replevy bond, or a bond to
release the attachment . . . and on the filing of such bond the
attachment became dissolved." The railway company, specially
entering its appearance,
Page 216 U. S. 79
moved to quash first upon the ground that it was a foreign
corporation, and had no agent, office, or place of business, and
transacted no business, in the State of Georgia, and was not
susceptible of being therein sued, and second because the box car
came into the state under a contract of interstate shipment, and
could not be attached in Georgia without imposing a direct burden
upon interstate commerce, in violation of the laws of the United
States regulating that subject. On July 26, 1907, the plaintiffs
demurred to the motion to quash and filed an answer to the same,
and on the same day filed their declaration in attachment. On
August 3, 1907, the railway company, appearing only for that
purpose, filed a formal plea to the jurisdiction of the court. In
this plea, with great elaboration, the grounds previously asserted
in the motion to quash were reiterated. The plaintiffs demurred to
this plea, and also answered the same. Both demurrers, the one to
the motion to quash and the other to the plea to the jurisdiction,
were heard together. The demurrers were sustained, and exceptions
were only reserved. Thereupon the railway company both demurred to
and answered the declaration in attachment. The demurrer challenged
the sufficiency of the declaration to show jurisdiction in the
court because it was not averred that the railway company was
transacting business or had an office, agent, or place of business
in the county where the suit was brought or in the State of
Georgia; that it was not charged that the Acts of negligence for
which recovery was sought had been committed in the State of
Georgia, and because, on the contrary, the contract relied upon in
the declaration was stated therein to have been made in Kentucky.
The answer, after reserving the benefit of the demurrer, traversed
the declaration on the merits, and, as a special defense, again set
up that the railway company had no line of road in the state, or
agent therein, and transacted no business in Georgia, and therefore
was not subject to be therein sued. Concerning the box car which
had been attached, it was specially set up that, in order to save
breaking bulk and reloading
Page 216 U. S. 80
at connecting points, the railway company had an agreement with
connecting carriers by which its cars, when loaded on its line with
freight for points in Georgia, should not be unloaded at the
terminus of the company's road, but should be transferred to the
connecting carrier for delivery in Georgia, such carrier coming
under an obligation to return the cars with all possible dispatch.
It was alleged that the car in question was delivered under these
circumstances, and was hence not subject to attachment in
Georgia.
The demurrer was overruled. The court also sustained a demurrer
filed on behalf of the plaintiffs to the special defenses set up by
the railway company in its answer, to which we have previously
adverted. To these rulings of the court, exceptions were noted by
the railway company and made part of the record. The case went to
trial upon the merits, and at the close of the evidence, the court
directed a verdict for the plaintiffs. The case was taken to the
court of appeals of Georgia, where the judgment was affirmed. 3
Ga.App. 400. This writ of error to the court of appeals was allowed
by the chief judge upon the ground that the court of appeals was
the highest court of the state in which a decision in the suit
could be had, and upon the averments made in the petition for the
allowance of a writ of error, that grounds of federal cognizance
were presented by the record.
MR. JUSTICE WHITE after making the foregoing statement,
delivered the opinion of the Court.
In the trial on the merits it was shown that a shipment of
livestock had been made from a point in Kentucky under a
Page 216 U. S. 81
contract with the railway company for delivery at Cordele,
Georgia, the contract contemplating the movement of the shipment
over the line of the railway company and the transfer by it of the
car to connecting carriers for delivery at the point of
destination. It was this contract of shipment out of which it was
alleged the claim arose which was the basis of the attachment. The
railway company offered in evidence the written contract, and then
rested its defense. This contract of shipment contained various
provisions limiting the common law liability of the railway
company. Thereupon the record recites as follows:
"Mr. Hill offers in evidence for plaintiff § 196 of the
Constitution of the State of Kentucky, as follows:"
" Transportation of freight and passengers by railroad,
steamboat, or other carrier, shall be so regulated by general law
as to prevent unjust discrimination. No common carrier shall be
permitted to contract for relief from its common law
liability."
"Mr. Jones [for railway company] objects that the regulation as
provided for in this section should accompany it, and unless it
does, it is irrelevant and inadmissible; that it is merely a
paragraph of the constitution of the state giving the legislature
and laws. He further objects to it on the ground that this suit is
brought under the Georgia laws, and is not a suit on a Kentucky
contract."
"Objection overruled."
"Plaintiff announces closed."
"Mr. Hill moves the court to direct a verdict for plaintiff for
the amount sued for."
"Mr. Jones [for railway company] insists that the contract
offered is a legal contract, and forms an issue for the jury to
pass upon."
Concerning the questions of jurisdiction raised by the
pleadings, the court of appeals, to which the case was taken, held
as follows: 1st. That, by the requirements of § 1475 of the
Georgia Civil Code, and by the application of the law of the
Page 216 U. S. 82
state as expounded in repeated decisions of the supreme
court,
"the giving of the replevy bond was a general appearance by the
defendant, dissolving the attachment and converting it from an
action
in rem into an action
in personam."
2d. That, under the law of the state,
"the filing of a general demurrer or an answer, not under
protestation, and without expressly reserving the special
appearance, waives the special appearance."
Applying these general propositions, it was decided that
"the defendant having, by filing a replevy bond, a demurrer, and
an answer, submitted itself personally to the jurisdiction of the
court, with the right to make only such defenses as it could have
made if it had been personally served with process, and the surety
on the replevy bond making no complaint against the judgment, it
becomes immaterial whether the levy of the attachment was regular
or not, or whether the property seized was subject to levy, and
these questions are therefore not for decision.
King v.
Randall, 95 Ga. 449. The defendant had the right to replevy,
irrespective of whether the property was subject or not subject to
the levy.
Swift v. Tatner, 89 Ga. 660, 673. In affirming
the judgment on the merits, the contract of shipment out of which
the controversy arose was treated as a Kentucky contract. Certain
limitations therein were held to be void under the laws of that
state, and other provisions which were held not to be repugnant to
those laws were decided not to exempt the railway company from
liability."
The assignments of error are eleven in number, but when the
reiterations which they contain are put out of view, it is apparent
on their face that, in their broadest aspect, they embrace only two
questions of a federal nature: first that the trial court did not
acquire jurisdiction over the railway company, as the levy upon the
box car was a direct burden upon, and, at all events, was repugnant
to the legislation of Congress on the subject of, interstate
commerce, and second that a right under the same legislation to the
benefit of the laws of the United States in construing the contract
of shipment upon
Page 216 U. S. 83
which the cause of action arose was denied by the decision of
the state court. But, as we have previously shown, on the face of
the record, it is apparent that the court of appeals did not pass
upon the question whether the levy of the attachment was regular,
or whether the property seized was subject to levy. It held,
construing the statutes of Georgia relating to attachments and the
decisions of the highest court of the state, that it was
unnecessary to decide those questions, because they had been waived
by the conduct of the railway company in giving a replevy bond and
answering, etc., without protestation. It follows that no federal
question is presented as to the issue concerning jurisdiction,
since the ruling below was based exclusively upon a nonfederal
ground broad enough to sustain it without considering or referring
to the alleged federal question. It is besides to be observed that
the plaintiff in error in argument does not question the
correctness of the deductions drawn by the court below from the
prior decisions of the Supreme Court of the State of Georgia.
Indeed, there is nothing in the record showing that any question
was raised below as to the repugnancy to the Constitution of the
United States of the statute of Georgia concerning the giving of a
bond to release attached property, as construed by the Supreme
Court of Georgia.
See, in this connection, the cases of
York v. Texas, 137 U. S. 15,
137 U. S. 20;
Kauffman v. Wootters, 138 U. S. 285, and
Mexican Central R. Co. v. Pinkney, 149 U.
S. 194,
149 U. S.
205.
The second proposition is that, as the court below construed the
contract of shipment upon which the cause of action depended by the
law of Kentucky, where it was made, instead of by the laws of the
United States regulating interstate commerce, thereby a federal
right was denied. But this contention is at once disposed of by
saying that the assertion of federal right upon which it rests
finds no support in the record, as it does not appear to have been
urged below, or called to the attention of, or decided by, the
appellate court. On the contrary, as we have previously shown, the
contention made at the trial by the railway company was not that
the contract of
Page 216 U. S. 84
shipment was to be governed by the laws of the United States,
but that it should be treated as a Georgia, and not as a Kentucky,
contract.
From these considerations, it results that the record presents
no federal question, and the writ of error is therefore dismissed
for want of jurisdiction.
Dismissed.
