1. A writ of prohibition or of mandamus to restrain a lower
court from assuming jurisdiction will ordinarily be denied if the
lower court's jurisdiction is doubtful or depends upon findings of
fact made upon evidence not in the record, or if the complaining
party has another adequate remedy by appeal or otherwise. Pp.
255 U. S. 275,
255 U. S. 280.
2. The immunity of a person from suit in a district whereof he
is not an inhabitant (Jud.Code § 51) can be waived, and ordinarily
is waived by a general appearance. P.
255 U. S.
279.
3. In a creditor's suit resulting in a receivership of a
railroad company and in a reference to ascertain claims, bonds of
the company were actively asserted by the bondholders' committee
and the mortgage trustee, and counsel for present petitioner, a
large holder of the bonds, appeared in its behalf before the
special master as one of the counsel for the committee.
Held: (1) that the district court had
Page 255 U. S. 274
jurisdiction to determine in the first instance whether
petitioner had appeared generally, and that it also had
jurisdiction to determine (2) whether a cross-bill subsequently
filed by the defendant railroad company, seeking to avoid the bonds
for petitioner's alleged fraud in procuring their issuance and to
hold petitioner liable on account of interest paid and bonds
negotiated to
bona fide holders, was germane to the
earlier proceedings on behalf of the bonds, and (3) whether, in
view of such earlier proceedings and general appearance, petitioner
was subject to such further proceedings by cross-bill a fully as in
the earlier action had been taken in its name a well as on its
behalf. P.
255 U. S.
279.
Rule discharged and petition dismissed.
The case is stated in the opinion.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
The Chicago, Rock Island & Pacific Railway Company, commonly
called the Rock Island, filed in this Court a petition in which it
alleged that the District Court of the United States for the
Northern District of Ohio, Western Division, was undertaking to
proceed against it personally in a suit therein pending; that the
Rock Island had not voluntarily become a party to the suit, had not
been served with process, and could not, under § 51 of the
Judicial
Page 255 U. S. 275
Code, be made a party without its consent, since it was
organized under the laws of Illinois and Iowa, and was not a
citizen or resident of Ohio, and it prayed for a writ of
prohibition or, in the alternative, a writ of mandamus to prevent
the court from proceeding further against it. The suit in which it
is sought to proceed personally against the Rock Island is one
brought by an Indiana stockholder of the Toledo, St. Louis &
Western Railroad Company, an Ohio corporation, for the appointment
of a receiver for that corporation. The particular proceeding by
which the personal liability is asserted is a cross-bill which was
filed by the Toledo Company against the Rock Island after the
appointment of the receiver, and after the Rock Island had appeared
before a special master for the purpose of protecting its interests
in an issue of the Toledo Company's its interests in an issue of
the Toledo Company's case is now before us on the petition and
return. The main questions argued here were whether, upon the facts
there stated, the Rock Island had become a party to the suit and
subjected itself generally to the jurisdiction of the court, and,
if it had not, whether the case is one which entitles the
petitioner to either of the extraordinary remedies applied for.
There is a well settled rule by which this Court is guided upon
applications for a writ of prohibition to prevent a lower court
from wrongfully assuming jurisdiction of a party, of a cause, or of
some collateral matter arising therein. If the lower court is
clearly without jurisdiction, the writ will ordinarily be granted
to one who at the outset objected to the jurisdiction, has
preserved his rights by appropriate procedure and has no other
remedy.
Ex parte Rice, 155 U. S. 396. If,
however, the jurisdiction of the lower court is doubtful,
In re
Muir, 254 U. S. 522, or
if the jurisdiction depends upon a finding of fact made upon
evidence which is not in the record,
In re Cooper,
143 U. S. 472,
143 U. S. 506,
143 U. S. 509,
or if the complaining party has an adequate remedy by appeal or
otherwise,
Ex parte
Tiffany, 252 U.S.
Page 255 U. S. 276
32, 37;
Ex parte Harding, 219 U.
S. 363, the writ will ordinarily be denied. Tested by
this rule, the case presented by the petition and the return does
not entitle the Rock Island to this extraordinary remedy.
The original bill filed against the Toledo Company in the
Northern District of Ohio, Western Division, alleged, among other
things, that it had defaulted on an issue of $11,527,000 collateral
trust gold bonds, secured by stock of the Chicago & Alton
Railroad Company held by the Central Trust Company of New York, as
trustee for the bondholders. These bonds were divided into two
classes having somewhat different rights and interests. A single
bondholders' committee was formed to protect both classes of bonds.
Of the A bonds, $6,480,000 were outstanding, and of these,
$5,248,000 were deposited with the committee, $400,000 of them by
the Rock Island. Of the B bonds, $5,047,000 were outstanding, all
of which were deposited with the committee by the Rock Island. The
special master was directed to ascertain and report the amount,
character, lien, and priority of all claims, and creditors were
notified to present before him their respective claims, duly
verified, or to file bills of intervention. The bondholders'
committee then filed a petition, collusive, and, in the
alternative, that judgment be rendered for the committee in the
amount of the face value of the bonds held by it, aggregating
$10,295,000 and accrued interest. To that petition an answer in the
nature of a cross-bill was filed by the plaintiff, who prayed that
the committee's petition be held to be an intervention, that the
receiver be directed to defend against the bonds held by the
committee, and that these bonds be ordered surrendered if found to
be invalid. By leave of court, the committee withdrew its petition
and sought its relief by a dependent bill. An order was thereupon
entered making the committee a party defendant to the original
bill, with leave to answer and file a
Page 255 U. S. 277
cross-bill. This it did, and the Central Trust Company also
filed a cross-bill to foreclose the lien on the Chicago & Alton
stock held as security for the collateral trust bonds. An order was
then made referring the case, on the issues raised by the several
pleadings, to the special master to take testimony and report.
At the beginning of the taking of testimony before the special
master, the appearances of counsel were formally noted by the
master, among others, as follows:
"Lawrence Maxwell, Esq., and J. P. Cotton, Esq., appearing for
the bondholders' committee, Mr. Maxwell appearing to represent the
interest of the Rock Island Company, and Mr. Cotton representing
the A bonds."
Thereafter the Toledo Company filed an answer and cross-bill in
which it claimed, among other things, that the whole issue of the
collateral trust bonds was void on account of fraud practiced by
the Rock Island; that the Rock Island was liable for all amounts
theretofore paid by the Toledo Company on the bonds in excess of
dividends received on the Chicago & Alton stock, and that it
was liable also for all amounts which the Toledo Company might be
required to pay thereafter on account of any of the series A bonds
which the court should hold to be valid obligations because they
had passed into the hands of innocent holders. The cross-bill of
the Toledo Company prayed that the necessary accounting be had,
that the Rock Island be declared to be a party, that it be required
to answer, and that, in default of answer, a decree be entered
against it
pro confesso. An order was entered in
accordance with the prayer of the bill, and notice thereof was
served on Mr. Maxwell as its solicitor. His name had not appeared
as counsel on any pleading filed by the committee.
The Rock Island then filed a motion which stated:
"Appearing solely for the purpose of the motion, and not
intending to submit itself to the jurisdiction of this Court
Page 255 U. S. 278
as a party to this suit, moves the court to set aside its
finding in the order entered herein March 11, 1918, that the
Chicago, Rock Island & Pacific Railway Company has heretofore
entered its appearance as a party to this suit and its order, . . .
on the ground that the court was without jurisdiction to make said
order, or over the defendant as a party to the cross-bill."
This motion was overruled, and an order was entered requiring
answer within 20 days. Thereupon a further motion was made by the
Rock Island in which, renewing its claim that it had not entered
its appearance and asserting that the court was without
jurisdiction over it as a defendant to the Toledo Company's
cross-bill,
"or at all, especially in respect of the pretended cause of
action therein set forth for the recovery of moneys from it, moves
to dismiss so much of said cross-bill as seeks to recover moneys
from the Chicago, Rock Island & Pacific Railway Company upon
the ground that it is not suable in this suit in this district upon
said pretended cause of action, not being an inhabitant of the
district or of the State of Ohio, and neither it nor the
cross-complainant being a resident of the district or state."
This motion also was overruled, and thereupon this petition for
a writ of prohibition or of mandamus was filed.
The return of the district court stated that the Toledo
Company's answer had alleged that the Rock Island had intervened in
its own right and had become a party to the cause, that, at the
hearing upon such answer, evidence was introduced, and that service
thereof was admitted by its solicitor as such. The return further
recited:
"The evidence upon which the court acted in making the findings
and orders of which complaint is made in said petition is not set
out in said petition. Respondent denies the statement in the brief
for petitioner that"
"the only basis for the claim that the district court has
Page 255 U. S. 279
jurisdiction of the person of the Rock Island Company is that
Mr. Maxwell entered its appearance by appearing as counsel for the
bondholders' committee."
The original entry of appearance by Mr. Maxwell quoted in the
petition and in the brief is only one item out of a large number of
items of evidence considered by the court on this point.
"No steps were taken by petitioner to preserve and have
certified a record of the evidence submitted on the hearings of
said motions, or to obtain a review of the orders complained of by
appeal or error proceedings."
It is argued on these facts that the district court did not
acquire jurisdiction to enforce the personal liability of the Rock
Island asserted in the cross-bill of the Toledo Company; but,
applying the rule stated above, that question should not be decided
in this proceeding. The most that can be said against the district
court's jurisdiction is that it is in doubt. And the return recites
that the order which declared that the Rock Island became a party
rests upon evidence which has not been embodied in the record. The
immunity of the Rock Island from suit in the Northern District of
Ohio, conferred by § 51 of the Judicial Code could be waived,
In re Moore, 209 U. S. 490, and
ordinarily a general appearance operates as a waiver,
Gracie v.
Palmer, 8 Wheat. 699. The district court obviously
had jurisdiction to determine, in the first instance, whether the
Rock Island had entered a general appearance.
Jones v.
Andrews, 10 Wall. 327. It had jurisdiction also to
determine whether the relief sought in the Toledo Company's
cross-bill was in its nature germane to the proceedings theretofore
instituted in the suit by the bondholders' committee or by the
Central Trust Company, so that the rights asserted in the
cross-bill could be properly litigated in that suit.
Chicago,
Milwaukee & St. Paul Ry. Co. v. Chicago Bank, 134 U.
S. 276,
134 U. S. 287.
And, finally, it had jurisdiction to determine whether the fact
that such earlier proceeding had been
Page 255 U. S. 280
instituted on behalf of the Rock Island, that it had actively
participated in the conduct thereof, and, to that end, had entered
a general appearance, made it subject to further proceedings
thereon by way of cross-bill as fully as if the earlier action had
been taken in its name, as well as on its behalf.
Compare also
Ex parte Gordon, 104 U. S. 515;
Globe Refining Co. v. Landa Cotton Oil Co., 190 U.
S. 540;
In re Pollitz, 206 U.
S. 323. If in the judgment of the Rock Island the
district court erred in the decision of any one or all of these
questions, it will have its remedy by appeal, unless it has failed
to preserve by appropriate procedure that right of review. The same
considerations lead to a denial also of the writ of mandamus.
Ex parte Roe, 234 U. S. 70.
Rule discharged, and petition dismissed.
MR. JUSTICE DAY took no part in the consideration or the
decision of this case.