No valid judgment
in personam can be rendered against a
defendant without personal service or waiver of summons and
voluntary appearance; an appearance, for the sole purpose of
obtaining a removal to a federal court of a defendant not
personally served but whose property has been attached in a suit in
a state court, does not submit the defendant to the general
jurisdiction or deprive him of the right to object, after the
removal of the case, to the manner of service.
After a case has been removed from the state court to the
federal court, the latter has full control of the case as it was
when the state court was deprived of its jurisdiction, and property
property attached in the state court is still held to answer any
judgment rendered against the defendant, and publication of the
summons in conformity with the state practice is sufficient as
against the property attached. But a judgment entered on such
service by publication can be enforced only against property
attached.
Where a judgment collectible only from property attached is
absolute on its face, the court so entering it exceeds its
jurisdiction and the judgment will be modified and made collectible
only from such property.
136 F. 462 modified and affirmed.
The facts are stated in the opinion.
Page 203 U. S. 168
MR. JUSTICE DAY delivered the opinion of the Court.
This case is here upon a question of jurisdiction of the circuit
court, duly certified under the Act of March 3, 1891. 26 Stat.
826.
The action below was commenced by Wells against Clark, September
20, 1904, in the District Court of the First Judicial District of
Montana, in and for Lewis and Clark County, to recover on a
promissory note in the sum of $2,500, with interest and costs. The
summons in the action was returned
Page 203 U. S. 169
September 22, 1904, with the indorsement by the sheriff that
Clark could not be found in his county.
An attachment was sued out under the statutes of Montana (Code
of Civil Procedure, §§ 890
et seq.), and on September 22,
1904, was levied upon all the right, title, and interest of the
defendant Clark in certain lots in Butte, Silver Bow County,
Montana.
On October 18, 1904, Clark, appearing for the purpose of
obtaining an order of removal, and no other, and reciting that he
waived no right to object to the jurisdiction of the court over his
person or property, filed his petition in the District Court of
Lewis and Clark County for the removal of the cause to the Circuit
Court of the United States for the District of Montana, upon the
ground that he was a resident of San Mateo, California, and a
citizen of that state, plaintiff being a citizen of Montana.
Upon bond filed, such proceedings were had that the cause was
ordered, on October 18, 1904, to be removed to the United States
Circuit Court for the District of Montana.
After the filing of the record in the United States court, an
affidavit was filed on November 3, 1904, in the office of the clerk
of the United States circuit court for an order for service by
publication upon Clark as a nonresident, absent from the state, who
could not be found therein. An order was thereupon made by the
clerk of the United States court for service upon Clark by
publication in a newspaper in the City of Helena, Lewis and Clark
County, and the mailing of a notice to San Mateo, California, the
alleged place of residence of the defendant. This method of
procedure is in conformity with the Code of Civil Procedure of
Montana, §§ 637, 638. Publication was made, and a copy of the
summons and complaint was served upon Clark at San Mateo,
California, by the United States Marshal in and for the Northern
District of California. Secs. 637, 638, Civil Code of Procedure of
Montana.
On December 6, 1904, Clark, appearing solely for that
purpose,
Page 203 U. S. 170
filed a motion to quash the service of summons upon two
grounds:
"1. That the said summons has never at all or in any manner been
served upon the defendant herein personally in the State and
District of Montana, nor has the defendant ever at any time waived
service of summons or voluntarily entered his appearance in this
cause."
"2. That the publication of service herein, wherein and whereby
the said summons has been published in a newspaper, does not give
the court any jurisdiction over the said defendant, nor is such
service by publication permissible or in accordance with the rules
of procedure in the United States court, nor is the same sanctioned
or authorized by any law of the United States, and the said
pretended service of summons by publication is wholly and
absolutely void under the laws of the United States."
The court overruled the motion and proceeded to render a
judgment
in personam against Clark for the amount of the
note and costs.
It is contended by the plaintiff in error that, inasmuch as the
removal was made to the federal court before service of a summons
upon the defendant, and as there was no personal service after the
removal, there could be no valid personal judgment in that court
for want of service upon the defendant. And it is insisted that the
service by publication, if proper in such cases, could not be made
under the state statute, but under the Act of March 3, 1875, 18
Stat. 472, 1 Comp.Stat. 513, permitting the court to make an order
for publication upon nonresident defendants in suits begun in the
circuit court of the United States to enforce any legal or
equitable lien upon a claim to real or personal property within the
district where suit is brought.
It must be taken at the outset as settled that no valid judgment
in personam can be rendered against a defendant without
personal service upon him in a court of competent jurisdiction or
waiver of summons and voluntary appearance therein.
Page 203 U. S. 171
Pennoyer v. Neff, 95 U. S. 715;
Caledonian Coal Co. v. Baker, 196 U.
S. 432,
196 U. S. 444,
and cases cited.
Nor did the petition for removal in the form used in this case
have the effect to submit the person of the defendant to the
jurisdiction of the state court, or, upon removal to the federal
court, deprive him of the right to object to the manner of service
upon him,
Goldey v. Morning News, 156 U.
S. 518, and the exercise of the right of removal did not
have the effect of entering the general appearance of the
defendant, but a special appearance only for the purposes of
removal.
Wabash Western Ry. Co. v. Brow, 164 U.
S. 271,
164 U. S.
279.
But we cannot agree with the contention of counsel for plaintiff
in error that, as a personal judgment can only be rendered upon
personal service, and service by publication under the state
statutes cannot be made in the federal court, and that the United
States statute (Act of March, 1875, 18 Stat. 470, 472) is
inapplicable to the case, the effect of the removal is to render
nugatory the attachment proceedings in the state court.
The purpose not to interfere with the lien of the attachment in
the state court is recognized and declared in the statute (sec. 4
of the Removal Act, 24 Stat. 552), providing that when any suit is
removed from a state court to the circuit court of the United
States, an attachment of the goods or estate of the defendant, had
in the suit in the state court, shall hold the goods or estate
attached to answer the final judgment or decree in the same manner
as by law it would have been held to answer the final judgment or
decree had it been rendered by the court in which the suit was
commenced, and preserving the validity of all bonds or security
given in the state court.
The transfer of the cause to the United States court gave the
latter court control of the case as it was when the state court was
deprived of its jurisdiction. The lands were still held by the
attachment to answer such judgment as might be rendered against the
defendant.
The defendant had a right to remove to the federal court,
Page 203 U. S. 172
but it is neither reasonable nor consonant with the federal
statute preserving the lien of the attachment that the effect of
such removal shall simply be to dismiss the action wherein the
state court had acquired jurisdiction by the lawful seizure of the
defendant's property within the state.
When the jurisdiction of the state court was terminated by the
removal, that court had seized upon the attached property, with the
right to hold it to answer such judgment as might be rendered. In
the absence of personal service, the state statute provided for
publication of notice of the pendency of the suit. If the defendant
failed to appear, the court might proceed to render a judgment,
which would permit the attached property to be sold for its
satisfaction. To render such a judgment in the absence of an
appearance and defense, the state court had only to require the
statutory notice to the defendant when its proceedings were
interrupted by the removal to the federal court on the application
of the defendant.
The federal court thus acquired jurisdiction of a cause of which
the defendant had notice, as appears by his petition for removal
and the action of the state court invoked by him. The defendant, it
is true, had not been personally served with process or submitted
his person to the jurisdiction of either the state or federal
court. But he did not attack the validity of the attachment
proceedings, which appear to be regular and in conformity to the
law of the state. There was no necessity of publication of notice
in the federal court in order to warn the defendant of the
proceeding; he knew of it, and to a qualified extent had appeared
in it.
Without further notice to him, the court had jurisdiction to
enter a judgment enforceable against the attached property. The
judgment purported to be rendered as upon personal service and
after a finding by the court
"that the so-called special appearance for the removal
hereinbefore recited was an absolute and unqualified submission to
the jurisdiction of this [the federal] court. "
Page 203 U. S. 173
There are expressions in the opinion of the learned judge of the
circuit court to the effect that the judgment rendered was intended
to be effectual only to subject the attached property (136 F. 462),
and it seems to be in the form used in some jurisdictions which
recognize that the property attached is all that is reached by the
judgment rendered. But the judgment is absolute upon its face, and
entered after a finding of full jurisdiction over the person of the
defendant. It is in such form as can be sued upon elsewhere and be
pleaded as a final adjudication of the cause of action set forth in
the petition, and be executed against other property of the
defendant, whereas the court had only jurisdiction to render a
judgment valid against the property seized in attachment.
We hold that, to the extent that it rendered a personal judgment
absolute in terms, the court exceeded its jurisdiction in the case,
not having, by service or waiver, personal jurisdiction of the
defendant.
The judgment to that extent is therefore modified and made
collectible only from the attached property. So modified, the
judgment is
Affirmed.