A defendant defeated on the merits after having specially
assailed the jurisdiction of the circuit court because of defective
writ and service is not bound to bring the jurisdictional question
directly to this Court on certificate under § 5 of the Act of March
3, 1891; he may take the entire case to the circuit court of
appeals, and, on such appeal, it is the duty of that court to
decide all questions in the record, and, if jurisdiction was
originally invoked for diversity of citizenship, the decision would
be final except as subject to review by this Court on
certiorari.
Where the circuit court of appeals has refused to decide a
question, this Court may either remand with instructions or it may
render such judgment as the circuit court of appeals should have
rendered, and where the new trial would, as in this case, involve a
hardship on the successful party, it will adopt the latter
course.
Where, under §§ 914, 918, Rev.Stat., the circuit court has
adopted a rule of practice as to form and service of process in
conformity with the state
Page 210 U. S. 156
practice, it is not bound to alter the rule so as to conform to
subsequent alterations made in the state practice. Under §§ 1109,
3948, 3949, Vermont Statutes, the service of process on a division
superintendent in charge of the property attached belonging to a
defendant railroad corporation
held to be sufficient.
The plaintiff below, who is respondent in this Court, was in the
service of the railroad company, petitioner, and in November, 1901,
was injured by being knocked off a freight car at a place called
Lyndon, in the County of Caledonia and District of Vermont. The car
was one of a freight train moving in the railroad yard, and the
plaintiff was struck, while on his car attending to the brake, by
some portion of the iron switch staff, alleged to have been
negligently built too high and too near the railroad track. The
injury made it necessary to amputate one of the legs of the
plaintiff just above the ankle. He sought to recover damages for
the injury, and, to that end, this action was commenced by
attachment in the Circuit Court of the United States for the
District of Vermont.
The jurisdiction of the court was founded solely upon the
diversity of citizenship, the plaintiff being a citizen of Vermont
and the railroad being a citizen of Massachusetts and operating, as
lessee, the Connecticut & Passumpsic Rivers Railroad Company in
the State of Vermont, on which road the accident occurred.
The service of the writ was made upon the division
superintendent at his office near Lyndon, in Vermont, and the
attachment was executed by attaching at that place two locomotives,
the property of the railroad.
The defendant appeared only for the purpose of filing a motion
to dismiss the writ because of its form, and also for the purpose
of filing a plea in abatement on account of the alleged defective
service of the writ. The defendant's motion to dismiss the writ was
denied, and a demurrer to the plaintiff's replication to the
defendant's plea in abatement was overruled, the result of the
whole being that plaintiff's writ and its service were both allowed
to stand.
Page 210 U. S. 157
The defendant then filed a plea to the merits, on which the
parties went to trial, resulting in a verdict of $3,350 for the
plaintiff.
The defendant took the case by writ of error to the circuit
court of appeals, where the judgment was affirmed; but that court
refused to decide the question of jurisdiction of the circuit
court, which had been argued before it at the same time with
questions upon the merits, on the ground that the circuit court of
appeals had no jurisdiction to decide it.
On application, this Court granted a writ of certiorari.
Page 210 U. S. 160
MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the Court.
The defendant endeavored in the circuit court to raise the
jurisdictional question arising from the alleged defective form
Page 210 U. S. 161
and also from the alleged defective manner of service of the
writ. It moved to dismiss the writ on account of its form, and
pleaded in abatement that the service of the writ was not
sufficient, and that the court obtained no jurisdiction over the
defendant by reason of such defective service. When the court
denied its motion to dismiss and overruled its demurrer to the
replication to its plea in abatement, defendant then filed its plea
to the merits and went to trial, and when the trial ended in a
judgment against it, the defendant sought to obtain a review of
that judgment by the circuit court of appeals on writ of error,
including the question of jurisdiction as well as the other
questions existing in the case.
The circuit court did not certify the sole question of
jurisdiction directly to this Court under § 5 of the Court of
Appeals Act of March 3, 1891, assuming that it might have done so
(
Shepard v. Adams, 168 U. S. 618;
Remington v. Central Pacific Railroad Company,
198 U. S. 95,
198 U. S. 97-99;
Board of Trade v. Hammond Elevator Co.,198 U.S.
424,
198 U. S.
434), but the plaintiff in error brought up the whole
case by writ of error before the circuit court of appeals, and
contended that it had the right to argue before that court, among
the other questions, that of the jurisdiction of the circuit court,
and that the circuit court of appeals ought to decide the same.
In this we think the defendant was right. The original
jurisdiction of the circuit court was invoked upon the sole ground
of diversity of citizenship. The defendant assailed the
jurisdiction of that court because of an alleged defective writ,
and also because of the alleged defective service of that writ.
Such a question of jurisdiction could be brought by writ of error
to the circuit court of appeals along with other questions arising
upon the trial of the merits of the case. The defendant was not
bound to waive the other questions in the case, and come directly
to this Court from the circuit court upon the sole question of
jurisdiction of the character herein presented, the jurisdiction
not resting upon the ground that the suit arose under the
Constitution, laws, or treaties of the United States,
Page 210 U. S. 162
but it had the right to go to the circuit court of appeals and
there argue the jurisdictional question of the character above
mentioned, among the others, and it was the duty of the circuit
court of appeals to decide the whole case, and its decision of all
questions appearing in this record would be final, on account of
the jurisdiction of the circuit court resting on diversity of
citizenship alone, unless this Court should review it by a writ of
certiorari. This principle was decided in
American Sugar
Refining Co. v. New Orleans, 181 U. S. 277,
181 U. S. 282,
and cases cited.
As a certiorari was issued in this case, it is now before us on
the return to that writ, and we have power to render such judgment
as the circuit court of appeals should have rendered, or we might
reverse the judgment of affirmance by that court, and send the case
back to it to decide the question of jurisdiction, which it had
refused to pass upon. We think it would be an unnecessary hardship
to the plaintiff to do the latter, because of the further delay
that would thereby be caused. The accident occurred in 1901, and
the trial resulted in a very moderate verdict, considering the
injury, and at this time, nearly seven years after the injury, the
plaintiff has not yet been paid the amount of his judgment.
The objections to the jurisdiction of the circuit court, as has
been stated, were two-fold -- one regarding the form of the writ
and the other the sufficiency of its service.
First, as to the form. The writ was one of attachment, and was
dated twenty-two days before, and made returnable on the first day
of the following term, and was served fifteen days before the term
by attaching the property, as above stated.
Section 914 of the Revised Statutes of the United States
requires that the practice, pleadings, and forms and modes of
proceeding in civil causes, other than equity and admiralty causes,
in the circuit and district courts shall conform, as near as may
be, to the practice, pleadings, and forms and modes of proceeding
existing at the time in like causes in the courts of record of the
state.
Page 210 U. S. 163
By § 918 of those statutes, it is provided that the several
circuit and district courts may, from time to time, make rules and
orders directing the returning of writs and processes "as may be
necessary or convenient for the advancement of justice and the
prevention of delay in proceedings."
At the May term of the Circuit Court of the United States for
the District of Vermont, held in 1885, rules 7 and 8 (in accordance
with the state practice) were adopted, reading as follows:
"Rule 7. The form of process and declaration shall be the same
as is or may be provided by the laws of this state, and, in cases
not expressly provided for by such laws, in the form used in the
county and supreme courts of the state so far as they may be
applicable to federal courts."
"Rule 8. All process shall be dated the day it issues, and all
mesne process shall be returnable to the next regular term, if
there shall be time for seasonable service thereof, according to
the laws of this state; otherwise it shall be returnable to the
next regular term thereafter; final process shall be returnable to
the next regular term, or otherwise, if so specifically ordered by
a judge."
Rule 13 provides that suits shall be docketed on the first day
of the term to which they are returnable, and Rule 14 makes it
necessary for defendant to enter his appearance on the first day of
the term at which he is required to appear.
At the time of the adoption of these rules, and up to 1893, it
was provided by § 868 of the Revised Laws of Vermont that
"every writ and process returnable before the supreme or county
court shall be served at least twelve days before the session of
the court to which it is returnable, including the day of service,
and excluding the return day. . . . A writ against a town, county,
school district, or other corporation shall be served at least
thirty days before the session of the court to which it is made
returnable. . . ."
This latter part of the section seems to have been construed as
making provision for service upon corporations of a municipal
Page 210 U. S. 164
character, and not private corporations, in regard to which the
practice was to serve the writs upon them precisely as against
individuals -- that is to say, twelve days before the session of
the court to which the writs were made returnable. This is said to
have been the construction of the trial courts of Vermont, but the
supreme court of the state never had occasion to pass upon the
question. In 1893, the rule of the state court was altered by
statute, and since that time, process directed to an officer
contains the direction, "Fail not, but service and return make
within twenty-one days from the date hereof;" and the writs are to
be served within twenty-one days from the date, and the defendant
must enter an appearance within forty-two days. The return of the
writ to the court at the first day of the ensuing term is no longer
necessary.
Judge Wheeler, who had been for many years one of the judges of
the Supreme Court of Vermont, and, from 1877 until his death, in
1906, a judge of the United States District Court for the district
of Vermont, in deciding the question of jurisdiction in this case,
and in speaking of the change of the state law in regard to the
time of service of the writ, said:
"In the state courts, there are but two terms in a year having
jurisdiction of such cases, and it appears to have been thought
best to have writs returnable oftener; but this Court has three
regular terms in each year, and it has not been considered that to
have writs returnable oftener would be advantageous for the
advancement of justice or the prevention of delays. Therefore, the
rule requiring such process to be returnable at the regular terms
has been retained without change. That this course is proper seems
to appear not only from the words of the statutes, but from
Shepard v. Adams, 168 U. S. 618, where a summons
made returnable according to a rule of the federal court, and not
in conformity with a changed state statute, was, after full
examination of the subject, upheld . Upon this view, this writ
appears to be regular and good, and the defendant's motion to
dismiss must be overruled."
In accordance with the views expressed in the above extract
Page 210 U. S. 165
from Judge Wheeler's opinion, he, as district judge, had not
altered the rule which had been first adopted in 1885, in
conformity with the practice of the state court existing at the
time of its adoption.
Shepard v. Adams, supra, seems to be
a sufficient authority for the refusal of the judge to alter the
rule of the circuit court so as to be in conformity with the
alteration made by the state statute in 1893.
The writ complied with the requirements of the rule of the
federal court, and was served more than twelve days before the
session of the court to which it was returnable, as provided in §
868 of the Revised Laws of Vermont of 1880, and it was served by
attaching the property of the defendant. By virtue of the two
sections above cited (914 and 918 of the Revised Statutes of the
United States), and in accordance with the holding in
Shepard
v. Adams, supra, the rules of the circuit court were
sufficient, and the form of the writ was proper.
It is also urged that, while Rule 8 remains, which requires that
all process shall be dated the day it issues, and all mesne process
shall be returnable to the next regular term (which, by Rule 13, is
the first day of the term), if the process thus returnable must
also contain the direction provided for in the statute since 1893,
"fail not, but service and return make within twenty-one days from
the date hereof," then there would be but a few days in the year in
which a writ could be lawfully issued in the Circuit Court for the
District of Vermont --
viz., the days between the
twenty-first and the twelfth days before each of the three terms of
the circuit court.
Such an objection shows at least the difficulty attending the
matter of service of process on the theory contended for by
plaintiff in error, unless the circuit court should abandon
altogether the old rulemaking provision for returning process to
any particular term of court, and make a new rule, following the
new method provided by the state statute. We think this
unnecessary. The federal judge was justified, by the statutes above
quoted and by the decision of this Court in
Shepard v. Adams,
supra, in refusing to alter the rules of the circuit
court,
Page 210 U. S. 166
which, when made, were in conformity to the state court
practice, and the objection to the form of the writ is therefore
without merit.
Second, in regard to the service. Section 1109 of the statutes
of Vermont, in providing for the service of an attachment, says
that a copy of the attachment and list of the articles attached,
attested by the officer serving the same, shall be delivered to the
party whose goods or chattels are so attached, or left at the house
of his then usual abode, and if such person is not an inhabitant of
the state, such copy shall be left with his known agent or
attorney, and for want thereof, at the place where such goods or
chattels were attached. This extends and applies to bodies
corporate and public. The service in this case was made by
attaching the locomotives, as already stated, and by leaving a true
and attested copy of the writ in the hands of H. E. Folsom, agent
and division superintendent of the railroad at his office in
Lyndonville, in the district.
It is objected by the defendant that Folsom was not a proper
party on whom to serve the writ. Sections 3948 and 3949 of the
Vermont statutes are cited to that effect. It is provided by § 3948
that the lessee of a railroad, not resident in that state, shall
appoint a person resident in the state upon whom service of process
may be made; and, by § 3949, if the lessee do not appoint such
agent, then the service may be made by leaving a copy of the
process with a station agent or depot master, in the employment of
such trustee or lessee. It is therefore contended that, if the
lessee had failed to appoint, then the service of process could not
be made upon any agent other than a station agent or depot master,
in the employment of the lessee, and there was no pretense that
Folsom, the division superintendent, had been appointed by the
railroad as the person upon whom service of process might be made,
and there was no averment or proof that he was a station agent or
depot master.
Those sections evidently refer to the ordinary cases of service
of process without an attachment, and do not refer to the
Page 210 U. S. 167
manner of serving an attachment and the process connected
therewith. That is provided for by § 1109,
supra. Folsom,
the division superintendent, was certainly a known agent of the
defendant.
Upon this question, Judge Wheeler well said:
"The known agent of a noninhabitant with whom the copy of an
attachment and a list of the articles attached may be left may not
be a person upon whom, by appointment, service of process generally
may be made. Folsom may have been such an agent about this property
attached, and not such an appointed person for service of process
upon. And leaving a copy in the same custody as that of the goods
or chattels attached would be leaving it at the place where they
were attached, although the custodian may have no other agency.
Hill v. Warren, 54 Vt. 78."
"The division superintendent of the railroad of the defendant,
designating the locomotives attached as its property, might well be
taken to be the known agent, or the accredited agent, as styled by
the marshal, of the defendant about the custody of those articles,
and leaving a copy of the attachment and a list of them with him
would be a leaving with a known agent of the defendant within the
meaning of that statute, or at the place where they were attached,
within the same meaning."
"The statute provides, Vermont Stat. § 3949, that, on failure to
appoint such a person for receiving service of process it 'may be
made by leaving a copy of the process with a station agent or depot
master in the employment of' the lessee. The plea alleges that the
defendant had, at the time of the service, many station agents and
depot masters in its employment in this state, to-wit, twenty-five,
with whom a copy might have been left, and that Folsom was not one
of them. But this statute only furnishes an additional mode of
service, generally, and does not require service of an attachment
to be made upon station agents or depot masters, nor supersede
service of such process in the mode otherwise provided."
The plaintiff, in his replication to the plea in abatement,
Page 210 U. S. 168
averred that the said Folsom, upon whom the process was served,
was, on the day of the service of the original writ in this cause,
to-wit, on the second day of May, A.D. 1904, a person residing
within the State of Vermont upon whom service of process issued
against the defendant might be legally made; to-wit, an agent of
this defendant. To this replication the defendant demurred. The
demurrer was overruled. Without going into the question whether the
motion to dismiss, and also the demurrer, were not waived by
pleading to the merits after the motion had been denied and the
demurrer overruled, we think the facts sufficiently appear that
Folsom, the division superintendent, was an agent within the
Vermont statute upon whom attachment process such as was issued in
this case might be regularly served. Accordingly, a valid service
upon the principal, within the law of Vermont, was duly made, and
jurisdiction was acquired by that service.
The judgment of the circuit court of appeals is
Affirmed.