Ahlhauser v. Butler

• Decision Date: 06 June 1892
• Citation: 50 F. 705
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: AHLHAUSER v. BUTLER et al.

50 F. 705

AHLHAUSER v. BUTLER et al.

United States Circuit Court, E.D. Wisconsin.

June 6, 1892

Charles Quarles, for the motion.

W. H Timlin and C. H. Hamilton, opposed.

JENKINS District Judge.

The defendants, citizens of New York, brought suit in this court against Messrs. Cotzhausen, Sylvester & Scheiber citizens of Wisconsin, to recover certain moneys claimed to be owing from them. Pending that action, and before trial thereof, the plaintiff here, a citizen of Wisconsin, brought this suit in a court of the state of Wisconsin, and therein garnished the defendants in the other suit as debtors of the defendants here, and for the debt which was the subject-matter of controversy in that other suit. The garnishees answered, and inter alia pleaded the pendency of the prior suit against them in this court. There was no personal service of process upon the defendants, substituted service being had by publication under the state law. The basis of jurisdiction was that the debt garnished was property of the defendants within the state, and subject to attachment. Within the time for answering, and without otherwise appearing to the suit the defendants filed in the state court their petition for the removal of the suit into this court, and it was removed accordingly. The defendants now appear specially to a motion to dismiss this suit for want of jurisdiction of the state court in this: that the debt was not subject to garnishment because of the pendency of the prior suit against the garnishees in another jurisdiction; that, therefore, no property or debt was impounded in the state court which could be subjected to the payment of the plaintiff's demand if and when ascertained, and there was no res for the exercise of any jurisdiction by the state tribunal.

It is objected preliminarily that the filing of the petition for removal is a person appearance in the suit, submission by the defendants to jurisdiction, and tantamount to personal service of process. It has been ruled in numerous cases that the filing in a state court of a petition for removal does not constitute a general appearance, or waive any want of jurisdiction of the person. Parrott v. Insurance Co., 5 Fed.Rep. 391; Blair v. Turtle, 1 McCrary, 372 376, 5 F. 394, 398; Atchison v. Morris, 11 F. 582; Small v. Montgomery, 17 F. 865; Hendrickson v. Railroad Co., 22 F. 569; Kauffman v. Kennedy, 23 F. 785; Miner v. Markham, 28 F. 387; Perkins v. Hendryx, 40 F. 657; Golden v. Morning News, 42 F. 112; Clews v. Iron Co., 44 F. 31; Bentlif v. Finance Corp., Id. 667; Reifsnider v. Publishing Co., 45 F. 433; Forrest v. Railroad Co., 47 F. 1; O'Donnell v. Railroad Co., 49 F. 689. It is said that in many of these cases the question was one of privilege, not of jurisdiction. The distinction is not apparent. General appearance to a suit works a waiver of privilege. There are also cases holding to the doctrine that the filing of a petition for removal is a general appearance to the suit and submission to jurisdiction. Sayles v. Insurance Co., 2 Curt. 212; Edwards v. Insurance Co., 20 F. 452; Tallman v. Railroad Co., 45 F. 156. In Sweeney v. Coffin, 1 Dill. 73, Judge TREAT held that the filing of the petition was an appearance, within the meaning of the judiciary act, requiring its filing at the time of entering appearance. Whether appearance for that purpose should be construed as a general or special one was a question not there involved or determined. In Bushnell v. Kennedy, 9 Wall. 387, 393, 394, there are certain remarks of Chief Justice CHASE, supposed to uphold the contention that the filing of the petition for removal is subjection to the person to jurisdiction. The chief justice is speaking to the question of the jurisdiction of the federal court, not of the state court. There was undoubted jurisdiction in the state court. The exception to the jurisdiction of the federal court was held to rest in privilege of the defendant, and could be and was waived by the act of the defendant in removal of the cause; otherwise, as the chief justice observe, a nonresident defendant could remove a case from a court having jurisdiction, into a court where exception to jurisdiction rested in personal privilege, and by motion to dismiss defeat the jurisdiction of both courts. The observations of the chief justice do not warrant the construction placed upon them. In Schwab v. Mabley, 47 Mich. 512, 11 N.W. 294, it was held that defendants not served with process had not, by uniting in a petition for removal with others who had been served, appeared to the action in the state court. Judge COOLEY, in delivering the opinion, observes:

'Counsel may be correct in supposing that, if the case had been removed to the federal court, all these defendants would have been in that court. The purpose of the petition was to put the case in the federal court for the purpose of trial and final disposition, and it might well be held that the granting of the prayer of the petition subjected all the defendants to the jurisdiction of that court. But it does not follow that the defendants were before the superior court for the like purposes.' If this suggestion be correct, the removal of the cause into a federal court is operative to jurisdiction by that court of the person of the party petitioning for removal,-- if the cause be a removable one,-- although an unsuccessful attempt to removal would be inoperative as a general appearance in the state court. In Construction Co. v. Fitzgerald, 137 U.S. 98, 105, 11 S.Ct. 36, it is stated that a defendant by demurrer, petition for removal, and other proceedings, had waived all question of service of process. Whether it was intended to assert that the petition for removal alone would have that effect in uncertain. The argument that the petition for removal is subjection of the person to the jurisdiction of the one court, or the other, at least when accompanied or preceded by no formal objection to jurisdiction, is not without force. If the question were res nova here, it would be deserving of careful consideration. I am, however, bound by the holding of Judge DRUMMOND in Atchison v. Morris, supra, and, until otherwise instructed by superior authority, must hold to the contrary.

The motion presents the question whether the prior suit in the federal court against the garnishee had the effect to oust the state court of jurisdiction to entertain this suit. Failing personal service to process or voluntary subjection to jurisdiction, the proceeding in the state court was in its essential nature a proceeding in rem, operative only upon the liability impounded by the garnishee proceedings. Cooper v. Reynolds, 10 Wall. 308; Pennoyer v. Neff, 95 U.S. 714. If, by reason of the prior suit in the federal court, the state court had not jurisdiction over the debt of the garnishees, the proceeding was wholly void. The principle is established that, as between courts of concurrent jurisdiction, that which first obtains possession of the controversy, or of the property in dispute, must be allowed to dispute of it finally without interference or interruption from the co-ordinate court. The principle has been frequently stated and its limitation declared by the supreme court. Thus, in Covell v. Heyman, 111 U.S. 176, 182, 4 S.Ct. 355, it is said:

'The forbearance which courts of co-ordinate jurisdiction, administered under a single system, exercise towards each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord; but between state courts and those of the United States it is something more. It is a principle of right and of law, and therefore of necessity. It leaves nothing to discretion or mere convenience. These courts do not belong to the same system, so far as their jurisdiction is concurrent; and, although they coexist in the same space, they are independent,

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