the merits if the court denies his application,33 nor by his obtaining an adjournment of the motion 34 nor by his asking for a stay of proceedings pending such decision.35 A removal of a cause from a State to a Federal court is not a general appearance whether or not the petitioner states that he appears specially for the purpose of the removal only.36 Even when he joins in the petition for removal with a party properly served.37 Nor, it has been held, is a demand for service of a copy of the complaint, made by a defendant in person or by an attorney.38 The later authorities hold: that when an objection to the jurisdiction over the person of the defendant is filed with a formal appearance, the latter will be considered to be special 33 Meisukas v. Greenough Red Ash Coal Co.; 244 U. S. 54, 37 Sup. Ct. 593, 61 L. ed. 987 (Where the extension was granted at the Court's own motion); Waters v. Central Trust Co. (2d Ct.), C. C. A., 126 Fed. 469; Yanuszauckas v. Mallory S. S. Co., C. C. A., 2nd Ct., 232 Fed. 132; Kuzma v. Witherbee Sherman & Co., 232 Fed. 286; Budris v. Consolidation Coal Co., 251 Fed. 673; Paine Lumber Co. v. Galbraith, 38 App. Div. (N. Y.) 68; Bell v. Good, 22 Civ. Proc. Rep. (N. Y.) 356, 46 N. Y. St. Rep. 572; Benedict v. Arnoux, 38 N. Y. Supp. 882. Contra, Hupfeld v. Automaton Piano Co., 66 Fed. 788; Kneeland v. Austin, 2 Law Bull. (N. Y.) 56; Krause v. Averill, 66 How. Pr. (N. Y.) 97; Briggs v. Stroud, 58 Fed. 717; Midland Contracting Co. V. Toledo Foundry & Machine Co., C. C. A., 154 Fed. 797. In Murphy v. Herring-Hall-Marvin Safe Co., 184 Fed. 495, 498, where defendants procured the order ex parte at chambers and did not serve or file it, until long after the removal of the case, when they procured a certified copy of the record. Cf. Lukosewicz v. Phila. & Read. Coal & Iron Co., v. 35 Harasimowicz v. Pennsylvania R. Co., 232 Fed. 295. 36 Goldey v. Morning News, 156 U. S. 518, 39 L. ed. 517; Wabash W. R. Co. v. Brow, 164 U. S. 271, 41 L. ed. 431; National Accident Society v. Spiro, 164 U. S. 281, 41 L. ed. 435; Cain v. Commercial Pub. Co., 232 U. S. 124; Am. Oil & Supply Co. v. Western Gas Const. Co., C. C. A., 239 Fed. 505; Wright v. Ankeny, 217 Fed. 988. 37 Garvey v. Compania Metalurgica Mexicana, 222 Fed. 732. 38 Murphy v. Herring-Hall-Marvin Safe Co., 184 Fed. 495; Hoyt v. Og. den Portland Cement Co. (N. D. Y. Y.), 185 Fed. 889. and not general,39 and that a party may file a special appearance with an objection to the jurisdiction over his person joined with other objections, such as a want of equity,40 or want of jurisdiction over the subject-matter of the suit,41 without submitting to the jurisdiction of the court.42 The defense by its attorneys at its expense of a suit against another in pursuance of a contract with him is not an appearance by a foreign corporation; nor will it support an application by the plaintiff to make it a party.43 44 It has been held: that after the question of jurisdiction has been properly raised, and the court has reserved its decision thereupon, a subsequent defensive proceeding, such as an appeal from an injunction order, or the cross-examination of a witness, whose deposition is taken by the plaintiff, and stipulating that copies of letters and telegrams may be used by either party in lieu of the originals,45 is no waiver of the objection. A State statute providing that a special appearance for the sole purpose of questioning the jurisdiction is equivalent to a general appearance is constitutional; 46 and has been followed in collateral proceedings, in which a State judgment was offered in evidence, but it does not bind the Federal courts at law or in equity even in a case originally instituted in a State court and brought into a court of the United States by removal.48 47 change v. Board of Trade, C. C. A., 125 Fed. 463. 46 York v. Texas, 137 U. S. 15, 34 L. ed. 604 (The Texan statute); Western Life Ind. Co. v. Rupp, 235 U. S. 261 (Kentucky statute); Chinn v. Foster-Milburn Co., 195 Fed. 158 (Kentucky statute). 47 Southern Pacific Co. v. Denton, 146 U. S. 202, 36 L. ed. 943; Mexican Central Ry. Co. v. Pinckney, 149 U. S. 194, 37 L. ed. 699; Galveston H. & S. A. Ry. Co. v. Gonzales, 151 U. S. 496, 38 L. ed. 248; all of which arose under the Texan statute. 48 Western Life Indemnity Co. v. Rupp, 235 U. S. 261 (Kentucky) Rule 22 of the Circuit Court of the Ninth circuit provided that any party appearing specially shall state in the paper which he serves and files that the appearance is special, "and that if the purpose for which such special appearance is made shall not be sanctioned or sustained by the court he will appear generally in the cause, and that if such statements be not made "the appearance shall be deemed and treated as a general appearance." This has been upheld.49 A special appearance, it would seem, is regularly made by special leave of the court obtained by an ex parte motion,50 and it is the safer practice to accompany it with an undertaking by the defendant to abide by the further orders of the court.51 By styling a paper a special appearance the draftsman does not prevent the appearance from becoming general.52 An appearance gratis can only be made by a defendant named in the introduction or prayer for process in the bill, unless by consent of all the parties to the suit.53 § 170. Effect of an appearance. A general appearance waives all objections to the form or manner of service of the subpoena,1 including the objections that the defendant was not found and did not reside within the district 2 and that neither statute); Cain v. Commercial Pub. Co., 232 U. S. 124 (Mississippi statute); Louden Machinery Co. v. Am. Mercantile Iron Co., 127 Fed. 1008, under the Iowa statute. 49 Mahr v. Union Pac. Ry. Co., 140 Fed. 921. 50 Thayer v. Wales, 5 Fisher's Pat. Cas. 448; Romaine v. Union Ins. Co., 28 Fed. 625. But see Dorr v. Gibboney, 3 Hughes, 382; National F. Co. v. Moline M. I. Works, 18 Fed. 863; York County Sav. Bank v. Abbot, 139 Fed. 988. 51 Romaine v. Union Ins. Co., 28 Fed. 625. 52 Crawford v. Foster, C. C. A., 84 Fed. 939; Caskey v. Chenoweth, C. C. A., 62 Fed. 712; Chicago Title & Trust Co. v. Newman, C. C. A., 187 Fed. 573. 58 Attorney-General v. Pearson, 7 Simons, 290, 302; Kentucky S. Min. Co. v. Day, 2 Saw. 468, 473. See 2 Thames & Mersey Ins. Co. v. United States, 237 U. S. 19; Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593, 603, 36 L. ed. 829, 832; St. 4 party resides within the district even where the case was originally brought in the District Court of the United States, and the jurisdiction depends upon diversity of citizenship; that the summons was served in another district; that a case pending in a Territorial court was after admission of the Territory as a State improperly transferred to a Federal instead of to a State court; and in equity that the plaintiff has an adequate remedy at law unless the latter objection is specifically taken by a concurrent motion or by answer, although the court may take this objection at any time. It has been held that a general appearance waives the objection that an action by the trustee in bankruptcy was not brought in the proper district, and that a Louis & S. F. Ry. Co. v. McBride, 141 U. S. 127, 132, 35 L. ed. 659, 661; Sayles v. Northwestern Ins. Co., 2 Curt. 212; Shields v. Thomas, 18 How. 253, 259, 15 L. ed. 368, 370; Toland v. Sprague, 12 Pet. 300, 331, 9 L. ed. 1093, 1105; Provident Sav. L. Assur. Soc. v. Ford, 114 U. S. 635, 639, 29 L. ed. 261, 263; Central Tr. Co. v. McGeorge, 151 U. S. 129, 38 L. ed. 98; Int. Constr. & I. Co. v. Gibney, 160 U. S. 217, 40 L. ed. 401; Texas & Pac. Ry. Co. v. Saunders, 151 U. S. 105, 38 L. ed. 90; Lowry v. Tile M. & G. Ass'n, 98 Fed. 817; Fosha v. W. U. Tel. Co., 114 Fed. 701; A. L. Wolff & Co. v. Choctaw, O. & G. R. Co., 133 Fed. 601; Mahr v. Union Pac. R. Co., 140 Fed. 921. Cf. Mexican Central Ry. Co. v. Robinson, C. C. A., 128 Fed. 1020. Budris v. Consolidation Coal Co., 251 Fed. 673; General Inv. Co. v. Lake Shore & M. S. Ry. Co., C. C. A., 250 Fed. 160; Blue Goose Min. Co. v. Northern Light Min. Co., C. C. A., 245 Fed. 727. The above statement in the text was quoted with approval in McKane v. Burke, 132 Fed. 688. But see Noyes v. Canada, 30 Fed. 665; Reinstadler v. Reeves, 33 Fed. 308. It has been said that consent of the parties does not waive the objection that the non-resident defendant to a suit for infringement of a patent has no regular and es tablished place of business within the district. U. S. Envelope Co. v. Franco Paper Co., 229 Fed. 576, 579. 3 Matter of Moore, 209 U. S. 490, 52 L. ed. 904; Western L. & Sav. Co. v. Butte & B. Consol. Min. Co., 210 U. S. 368, 52 L. ed. 1101; Horn v. Pere Marquette R. Co., 151 Fed. 626; Midland Contracting Co. v. Toledo Foundry & Machine Co., C. C. A., 154 Fed. 797; U. S. Gypsum Co. v. Sliwienska, C. C. A., 183 Fed. 688; Title Guaranty & Surety Co. v. U. S., C. C. A., 187 Fed. 98. See Southern Pac. Co. v. Denton, 146 U. S. 205, 36 L. ed. 945; supra, § 62a. 4 See Budris v. Consolidation Coal Co., 251 Fed. 673. 5 Arizona & New Mexico Ry. Co. v. Clark, 235 U. S. 669. 6 Corban v. Conklin, C. C. A., 208 Fed. 231. 7 Reynes v. Dumont, 130 U. S. 354, 32 L. ed. 1005; infra, § 376. 8 Lewis v. Bocks, 23 Wall. 466, 23 L. ed. 70; infra, § 376. 9 McEldowney v. Card, 193 Fed. 475. general appearance by a foreign receiver waives any question of the jurisdiction of the court to adjudicate concerning the internal affairs of a foreign corporation.10 "Ordinarily jurisdiction over a person is based on the power of the sovereign asserting it to seize that person and imprison him to await the sovereign's pleasure. But when that power exists and is asserted by service at the beginning of a cause, or if the party submits to the jurisdiction in whatever form may be required, we dispense with the necessity of maintaining the physical power and attribute the same force to the judgment or decree whether the party remain within the jurisdiction or not. This is one of the decencies of civilization that no one would dispute." 11 Where the want of a residence essential to the jurisdiction appears upon the face of the plaintiff's pleading, the objection may be raised by a motion to dismiss. 12 It is not waived by answer after a motion upon this ground has been overruled,13 provided that the answer specifically reserves the objection.14 Where the complaint misstates the residence, the objection may be raised by answer.15 If the misstatement of residence is subsequently discovered before or at the trial defendant's remedy is a motion for leave to withdraw his general appearance and answer and to plead specially to the jurisdiction.16 Should the plea to the jurisdiction be overruled or successfully traversed in the Second Circuit leave to answer upon the merits may then be given.17 It has been held: That if a party joins with a special appearance and motion to set aside service of process a motion to dismiss the suit on another ground, he thereby waives his 10 Chicago Title & Trust Co. v. Newman, C. C. A., 187 Fed. 573. 11 Michigan Trust Co. v. Ferry, 228 U. S. 346, 353, per Holmes, J. 12 Southern Pae. Co. v. Denton, 146 U. S. 202, 36 L. ed. 943; Tice v. Hurley, 145 Fed. 391. But see contra, Ches. & O. Coal Agency Co. v. Fire Creek C. & C. Co., 119 Fed. 942. 13 Leonard v. Merchants' Coal Co., C. C. A., 162 Fed. 885; Blandin v. Ostrander, C. C. A., 239 Fed. 700. 14 Norfolk Southern R. Co. V. Foreman, C. C. A., 244 Fed. 353; Chicago, R. I. & P. Ry. Co., v. Jaber, 85 Ark. 232, 107 S. W. 1170. 15 Leonard V. Merchants' Coal Co., C. C. A., 162 Fed. 885. 16 Lehigh Valley Coal Co. v. Yensavage, C. C. A., 218 Fed. 547. Certiorari denied, 235 U. S. 705. Lehigh Valley Coal Co. v. Washko, C. C. A., 231 Fed. 42. See supra, § 62a. 17 Kever v. Phila. & R. R. R. Co., C. C. A., 260 Fed. 534. Certiorari denied, 250 U. S. 665, 40 Sup. Ct. 13, 63 L. ed. 1197. |