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Moynahan v. Wilson.

And I am

Peters, 60; Ulmer v. Hiatt, 4 Greene, 439, 441. strongly inclined to think that filing a petition in the State Court, which, according to the better authority, requires no action on the part of that court, and deprives it instantly of its jurisdiction of the case, cannot be considered a general appearance in the cause.

But whether this be so or not, I am satisfied that the petition for removal should not be construed as a waiver of a fraud in procuring the service of the writ. While it is true that a general appearance is a waiver of irregularity in the writ or its service, none of the authorities go to the extent here claimed. In Chitty's General Practice, vol. 3, 522 to 525, an important and suggestive distinction is taken between mere irregularities and such defects as render the proceedings a total nullity and altogether void; for although an irregularity may be waived, if not objected to within a reasonable time, it has been considered to be a general rule that a nullity or essential defect may be taken advantage of at any subsequent stage of the action. In Taylor v. Phillips, 3 East, 155, it was held "that service of process on Sunday was absolutely void by statute and could not be made good by any subsequent waiver of the defendant by his not objecting until after a rule to plead given." And to the same effect is Morgan v. Johnston, 1 H. Black. 628. A large number of other cases are cited in Chitty, which apparently proceed upon the same ground. While I think the American courts would not go so far in holding that material defects could not be waived, the distinction between irregularities and nullities is noticed and approved in several American cases. In The United States v. Yates, 6 Howard, 605, it was said, that leave to withdraw an appearance will not authorize a motion to dismiss for want of citation, nor for mere irregularity in its service, provided the appeal is in other respects regularly brought up and authorized by law.

Moynahan v. Wilson.

"The citation is merely notice to the party and his appearance in person or by attorney is an admission of notice on the record and he cannot afterwards withdraw it; but the appearance does not preclude the party from moving to dismiss for the want of jurisdiction or any other sufficient ground except for the one above mentioned." So in Carroll v. Dorsy, 20 How. 204, it was held that a defect in the writ of error or an omission to file a transcript of the record at the terin next succeeding the issuing of the writ, were fatal errors, notwithstanding a general appearance.

And the

earlier case was cited and affirmed. The court held that the appearance of the defendants without making a motion to dismiss cured nothing but the defect in the citation. See, also, Buckingham v. McLean, 13 Howard, 150.

There is, undoubtedly, a class of cases which hold that where the State Court has acquired jurisdiction by attachment of property the defendant, on removing, will not be permitted to claim that the case should be dismissed, because the Federal Court would not have had jurisdiction if the case had been originally commenced there. This was really all that was decided in Sayles v. The Northwestern Ins. Co., 2 Curtis, 212, though there are sentences in the opinion. which seem to conflict with the views here expressed. So in Bushnell v. Kennedy, 9 Wall. 387, it was held, that after removal defendant could not defeat the action by showing it was not originally cognizable in the Federal Court. To the same effect is Barney v. Globe Bank, 5 Blatch. 107.

These cases hold that if the defendant, not being compelled to appear in the State Court, does actually appear and remove the case, he thereby submits to the jurisdiction and cannot raise in this court a defense he could not raise in the State Court; but in the case under consideration the defendant was compelled to make this motion somewhere or lose the benefit of the defense. If he allowed the case to go to

Moynahan v. Wilson:

judgment it would probably be too late, the fraud rendering the service of the writ not void but voidable. Advantage must undoubtedly be taken of the defect within a reasonable time, but it does not follow that an act which for some purposes may be considered an appearance and possibly sufficient to operate as a waiver of previous irregularities, should be considered as confirming a fraud in the service of the writ. It is a general rule for which numerous cases may be cited, that in order to confirm a fraud the party injured must not only do some act manifesting an intention to confirm, but must be aware of the legal consequences of the act. Indeed, there seems to be in cases of this class a well-settled exception to the general maxim "Ignorantia legis neminem excusat.” Kerr on Fraud, 296; Murray v. Palmer, 2 Sch. & Lef. 486; Cockerell v. Cholmondelay, 1 R. & M. 425; Cumberland Coal Co. v. Sherman, 20 Md. 117; Cherry v. Newsom, 3 Serg. 369; Stump v. Gary, 2 De G., M. & G. 623. If this rule be applicable here (and I see no reason why it is not) the case is freed from all doubt. There is not the slightest reason for supposing the defendant intended to waive the fraud by removing the case. Indeed, the promptness with which the removal was effected, and this motion made, precluded the idea either of an intention to confirm or a belief that such was the legal effect of his act.

Again: It seems to me inconsistent with the general scope and purpose of the removal acts to compel a party to litigate any portion of his case in a State Court, or lose his defense pro tanto. Under the judiciary act, if the defendant had made this motion in the State Court, he would thereby have waived his right of removal, since it was necessary to file his petition at the time of entering his appearance; and while, under the act of 1875, the removal may be made before, or at the term at which the cause could be first tried, and before the trial thereof, it is provided in section 6, that

Moynahan v. Wilson.

in case of removal the Circuit Court shall proceed therein as if the suit had been originally commenced in the Federal Court.

In Lamar v. Dana, 10 Blatch. 34, a suit was brought in the State Court for an arrest made by the defendant, during the rebellion, by authority of the President, and the plaintiff' moved to remand on the ground that the jurisdiction of the Federal Court over the case had been taken away by the act of 1867. It was held that, notwithstanding this act, the parties could raise any question in the Federal Court after removal which they could raise if the cause had been originally commenced here, and it was said by Judge WOODRUFF, "the removal places the case in the same position here as if so (originally) brought. This operates in this case as in all other cases so removed. Had the cause been brought here in the first instance, all legal defenses would have been available to the defendant, whether they went to jurisdiction to inquire, or were in bar of the action on any ground. All that the removal has done is to change the tribunal which is to pass upon the questions involved." See, also, Gier v. Gregg, 4 McLean, 202; McLeod v. Duncan, 5 McLean, 342.

There is no doubt that this motion might have been made in the State Court, and that the decision of the State Court thereon would have been res adjudicata; but I think the defendant is not compelled to split up his defense in this way. There is no reason to suppose that the removal acts were not aimed at the possible partiality of local judges as well as local influence upon juries, and any construction which would deprive litigants of a judicial interpretation of the law in this court, as well as a determination of the facts involved, would, to that extent, defeat the intention of Congress. The power of removal is not limited to cases where only questions of fact are involved, and this court would.

Moynahan v. Wilson.

clearly not be called upon to remand if the sole question in the case were one of law.

Without deciding how far a petition for removal is an appearance, or how far a general appearance would operate as a waiver of a fraud in service of a process, it is sufficient here to say that I do not think that the petition for removal is a waiver of the right of the defendant to insist that the service of the process was procured by a fraudulent device or trick.

But I think the plaintiff has made his motion too broad, in asking that the writ itself be set aside, and vacated. Service of the writ must be set aside, and the plaintiff ordered to return the property to the defendant; and, as defendant came into this district after hearing that the plaintiff had replevied or threatened to replevy his property, and for the purpose of rescuing it, I think the service should be set aside also, as to him.

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