Benedict v. Seiberling

• Decision Date: 05 January 1927
• Docket Number: No. 702.,702.
• Parties: BENEDICT v. SEIBERLING et al.
• Court: U.S. District Court — Northern District of Ohio

17 F.2d 841 (1927)

BENEDICT v. SEIBERLING et al.

No. 702.

District Court, N. D. Ohio. W. D.

January 5, 1927.

Tracy, Chapman & Welles, of Toledo, Ohio, for the plaintiff.

Squire, Sanders & Dempsey, Thompson, Hine & Flory and Griswold, Green, Palmer & Hadden, all of Cleveland, Ohio, Mather, Nesbitt & Willkie, of Akron, Ohio, and Fraser, Hiett, Wall & Effler, of Toledo, Ohio, for defendants F. A. Seiberling, Robinson, Manton, and Francis Seiberling.

Brown, Hahn & Sanger, of Toledo, Ohio, for defendants McMahon, Fowler, Miller and Schaffner.

Geddes, Schmettau, Williams, Eversman & Morgan, of Toledo, Ohio, for defendants Jones and Erwin.

Doyle & Lewis, of Toledo, Ohio, for defendant Wilmer.

Tolles, Hogsett & Ginn, of Cleveland, Ohio, for defendant Union Trust Co.

Cotton & Franklin, of New York City, and Waters, Andress, Southworth, Wise & Maxon, of Akron, Ohio, for Goodyear Tire & Rubber Co.

KILLITS, District Judge.

The motion immediately before us is entitled, "Amendment to Motion for Leave to Subpoena Witnesses." It is supported by another entitled "Amendment to Motion to Quash Service of Summons." In the body of neither is there any statement that requires the court to consider the previous motions, which were orally denied for reasons appearing upon the face thereof. The original motion for leave to subpœna witnesses asked also for subpœnas duces tecum against four persons. In Hale v. Henkel, 201 U. S. 43, 77, 26 S. Ct. 370, 50 L. Ed. 652, we orally held that the specifications as to what was required under a subpœna duces tecum were in each instance altogether too broad, and that the demand amounted to an invasion of the constitutional rights of the alleged witnesses. The impression that we get from the present record is that, notwithstanding their titles, we should treat the motions as amended pleadings, and that the moving defendants are not now asking for subpoenas duces tecum; otherwise as to the four witnesses from whom papers were originally sought we must adhere to our former ruling. It is quite plain that the motion for leave to subpœna must be considered in connection with the motion to quash service under which the former finds its place on our records.

Treated only as motions to relieve the four moving defendants from the effects of service, the record is such that they cannot be recognized, for the reason that an effective appearance of at least one of these defendants, and we think with him the remaining three who are so closely associated with him, has been made in this case by reason of the facts attending the filing of an affidavit, subsequently amended, for a change of judge upon our alleged personal bias and prejudice, concerning the adequacy of which a memorandum striking off the affidavits has been filed.

This case was begun by the filing of the bill December 10, 1926. December 15, two members of the firm of Squire, Sanders & Dempsey, one member each of the firms of Mather, Nesbitt & Willkie, Thompson, Hine & Flory, Griswold, Green, Parker & Hadden, and Fraser, Hiett, Wall & Effler, appeared, without invitation, in our chambers and requested our withdrawal as presiding judge in this case, a position which we occupied by reason of the regular division of duties between the judges of this district. This request set up in general the same reasons which we found inadequate in the subsequent formal affidavit. With the exception of one fact, which on reflection these counsel voluntarily abandoned as ineffective by itself or in attempted connection with anything else, the only difference between the alleged reasons and facts which, in view of counsel, justified the oral request, and those more formally stated in the affidavit in question, was in respect to amplification in the latter. At the time of our interview with counsel in question, no proceedings in the case had been attempted by the defendants in whose behalf counsel then appeared. It was made quite plain to us then that the oral request was proferred for and in the interest of each of the four defendants, who are now moving before us; and it is apparent, not only in the record made in the bill, but in various proceedings since had that the interests of these moving defendants in this action are both identical and communal.

Having declined to withdraw from the case upon this oral request, on the 18th of December, at 10:45 in the forenoon, the four moving defendants filed their original "Motion to Quash Service of Summons," in which it was made plain that they severally appeared specially to present the question of jurisdiction on the alleged ground that this cause had been collusively instituted and jurisdiction in the case here had been fraudulently brought about. Two minutes later, one of the four defendants so moving, and of the four in whose behalf we were orally requested to withdraw, filed an affidavit of alleged disqualification, in which were attempted to be set up in detail the grounds supporting their theory of fraudulent collusiveness procuring this action, and certain facts supposed to support the charge of our disqualification. This affidavit was subsequently stricken from the files, both for insufficiency in statement of alleged reasons, and because no such certificate of good faith as required by law had been indorsed thereon. Subsequently we permitted the affidavit to be refiled, with a proper indorsement of counsel. Otherwise the two were identical. Whereupon the second or amended affidavit was stricken from the files for the first reason assigned in the action respecting the original.

Upon this situation, and considering the identical and communal interest of the four moving defendants and the fact that the attempted affidavits and motions covered the same situations respecting the alleged want of jurisdiction, we feel that we should consider that the two affidavits, although verified by one defendant only, were, in fact, in the joint behalf of all four.

The general rule is that any action on the part of a defendant, which recognizes the case as in court, except to object to the jurisdiction over his person, will constitute a general appearance, and that, if such act follows an attempt at special appearance only, waiver occurs of the claim of lack of jurisdiction of the person. 4 Corpus Juris, p. 1316, § 3, page 1333, § 27, page 1339, § 32. This has been applied, according to the notes in Corpus Juris (loc. cit.) to applications for change of venue or change of presiding judge and there is no contrariety of authority; wherefore we need cite none but leading cases.

In Kelly v. Brown, 310 Ill. 319, 141 N. E. 743, the steps taken were precisely similar to those in the instant case. The defendant first moved specially, objecting to the jurisdiction of his person. Subsequently, as here, he filed an affidavit with an application for a change of venue and another judge, in which, first, as in the instant case, disclaiming any intention to enter a general appearance, he charged the presiding judge with personal bias and prejudice. The Supreme Court of Illinois, in line with the doctrine above stated, held that by so doing he appeared generally in the case. The same holding was had in State ex rel. Engle v. Hilgendorf, 136 Wis. 21, 116 N. W. 848, by the Supreme Court of Wisconsin. Our statute permits a party, only, to recuse a judge. One who assumes the rights of a party admits the effectiveness of the act which gives him that status. He thereby recognizes that an action is pending which involves him and in which he can have the relief asked only by appearing as a party thereto. We must hold therefore that each of these four defendants has entered a voluntary appearance in this case upon this state of facts.

This, however, does not exhaust the court's duties in consideration of the motions in question, for we should at any time consider a proper charge that our jurisdiction has been fraudulently invoked; and the moving defendants exercised a plain duty, which not only they owed to themselves but to the court, in attempting to bring the question to our attention at the threshold of the proceedings herein. We are not concerned, following the Supreme Court in Gilbert, Adm'r, v. David, 235 U. S. 561, 35 S. Ct. 164, 59 L. Ed. 360, with formalities in the manner of challenging the court's jurisdiction, and we would be remiss if we did not take up the motions before us in the consideration that they were of the nature of special pleas in bar upon this subject.

At the threshold of that consideration, however, appears the question of sufficiency, which was decided adversely to the same movants when the original motions on the subject were denied. As we said then orally, we should say again, that, however informally or by whatever form the question is raised, there must be developed in the raising a specific and clear issue of fact. In Barry v. Edmunds, 116 U. S. 550, 559, 6 S. Ct. 501, 29 L. Ed. 729, it was held that, upon the creation of such an issue, the court cannot dismiss unless upon facts appearing on the record which "create a legal certainty of the conclusion based on them." Deputron v. Young, 134 U. S. 241, 10 S. Ct. 539, 33 L. Ed. 923. In Hartog v. Memory, 116 U. S. 588, 590, 591, 6 S. Ct. 521, 522 (29 L. Ed. 725), the Supreme Court, speaking of the form of the issue, and passing upon the Act of 1875 (section 37, Judicial Code Comp. St. § 1019), said:

"Neither party has the right, however, without pleading at the proper time and in the proper way, to introduce evidence, the only purpose of which is to make out a case for dismissal. * * * The evidence must be directed to the issues, and it is only when facts material to the issues show there is no jurisdiction that the court can dismiss the case upon the motion of either party."

We take this to mean that, while no special pleading is necessary if the facts may be shown upon issues already joined, still an issue must be raised. Then considering that an...