1. A petition to remove from state to federal court is not a
general appearance. P.
271 U. S.
199.
2. Pleading to the merits, after overruling of motion to dismiss
for lack of jurisdiction over defendant which defendant does not
waive, is not submission to the jurisdiction. P.
271 U. S.
200.
Page 271 U. S. 196
3. Where objection to the jurisdiction appears in the record
proper, it is not necessary to reiterate it in a bill of
exceptions. P.
271 U. S.
200.
3 F.2d 605 reversed.
Error to a judgment of the district court on a verdict recovered
in an action on contract brought in a South Carolina court by a
resident of that state against an Indiana corporation and removed
to the federal court.
Page 271 U. S. 198
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a writ of error upon a judgment
in personam
against the plaintiff in error on the ground that there never was
any valid service of process against it and that therefore there
was no jurisdiction in the Court. The writ was transferred from the
circuit court of appeals to this Court, the case being one in which
the jurisdiction of the district court, and that alone, was in
issue within the meaning of ยง 238 of the Judicial Code, under the
decisions in
Shepard v. Adams, 168 U.
S. 618,
Remington v. Central Pacific R. Co.,
198 U. S. 95, and
Board of Trade v. Hammond Elevator Co., 198 U.
S. 424, and therefore not open to review in the circuit
court of appeals.
The Carlo Poma, 255 U.
S. 219.
The suit is for an alleged breach of contract, and was brought
in a court of the South Carolina against a corporation of Indiana.
The only personal service was by delivery of copies of the summons
and complaint in Indiana on May 12, 1919, as the record shows. An
attachment was levied on property alleged to belong to the
defendant and within the state. The record further shows that, in
the same month, the defendant moved to set aside the service, and
that the motion was refused, without prejudice to the defendant's
right to set up the special defense in its answer, this being a
right clearly given by the statutes of South Carolina. The case
then was removed to the district court of the United States, and
subsequently, in September of the same year, an answer was filed
alleging the above-mentioned motion and order and setting up that
the Court had no jurisdiction,
Page 271 U. S. 199
because the defendant was an Indiana corporation doing no
business and having no property within the state upon which
attachment could be levied so as to give the Court jurisdiction,
and also, reserving its right to object to the jurisdiction,
pleading to the merits. In March, 1921, an amended complaint was
filed alleging that the defendant had property in the state and
setting forth the cause of action. The defendant answered, denying
the jurisdiction as before and denying that it had property within
the state, and saving its right to object to the jurisdiction,
again answering to the merits. With regard to the attachment, it is
enough to say that a third party intervened, claimed the goods, and
finally got judgment for them. But before that happened, there was
a trial on the merits between the plaintiff and defendant, and a
verdict for the plaintiff in 1921. The motion for judgment was
delayed until May, 1924. In the same month, the defendant moved to
set aside the verdict and to dismiss the complaint for want of
jurisdiction. The judge then sitting thought that the question of
jurisdiction should be left to the decision of the appellate court,
and ordered judgment. A motion to vacate the judgment was overruled
on the same ground.
Thus, it is manifest that the record shows a judgment against a
defendant never served with process and without any attachment of
property -- a judgment void upon its face unless the record
discloses that the defendant came in and submitted to the
jurisdiction, although not served. The record discloses no general
appearance in terms, but, on the contrary, a continuous insistence
by the defendant that it had not been brought within the power of
the Court. But acts and omissions are relied upon as having the
effect of a general appearance. First in order of time, it is said
that the petition to remove had that effect. This, if true, would
be unjust, but the contrary is
Page 271 U. S. 200
established.
General Investment Co. v. Lake Shore &
Michigan Southern Ry. Co., 260 U. S. 261,
260 U. S.
268-269;
Wabash Western Ry. Co. v. Brow,
164 U. S. 271,
164 U. S. 279.
Then it is said that pleading to the merits was an appearance
notwithstanding the effort of the defendant to subordinate its
denial of the cause of action to its protest against the
jurisdiction and notwithstanding the statute of South Carolina and
the order in the case purporting to save its rights. This again
would be unjust, but such is not the law.
Harkness v.
Hyde, 98 U. S. 476,
98 U. S. 479;
Southern Pacific Co. v. Denton, 146 U.
S. 202,
146 U. S. 209.
It is said that going to trial on the merits without saving an
exception submitted to the jurisdiction. The plaintiff (the
defendant in error) objects to our seeking any explanation in a
bill of exceptions that he says was allowed too late, but the
record shows that, at the time of the trial, the attachment was
outstanding, not having been vacated until later, and that it no
doubt may have been, as the bill of exceptions shows that it was,
the expectation of the trial judge that the verdict would be
satisfied out of the attached goods. The record showed the
defendant's denial of the right to proceed, and the grounds for it.
It was not necessary to reiterate the denial in a bill of
exceptions in order to get it on the record. It already was
there.
There was some suggestion that the emphasis, at least, of the
answer denying jurisdiction was on the absence of the defendant
from the state and its having no property there. But the answer and
the amended answer elaborately set out the motion to set aside the
service and the reservation of the defendant's rights by the state
judge. It seems to us impossible to doubt that this was meant to
save the question, and that it would be hypertechnical to require a
more explicit statement that the grounds of the motion as well as
the other matters mentioned were still the basis on which
jurisdiction was denied. The other
Page 271 U. S. 201
matters were added simply to give further force to the failure
to serve within the state. We are of opinion that the record does
not disclose an appearance by the defendant, or any submission to
the jurisdiction that it sought and had a right to avoid.
Judgment reversed.