Flint v. Coffin

• Decision Date: 01 February 1910
• Docket Number: 823.
• Parties: FLINT v. COFFIN et al.
• Court: U.S. Court of Appeals — Fourth Circuit

176 F. 872

FLINT v. COFFIN et al.

No. 823.

United States Court of Appeals, Fourth Circuit.

February 1, 1910

James H. Merrimon and J. Frank Snyder (James G. Merrimon, on the brief), for plaintiff in error.

R. C Strudwick and E. J. Justice (W. P. Bynum, Jr., Justice &amp Broadhurst, and Norwood & Norwood, on the brief), for defendants in error.

Before GOFF, Circuit Judge, and WADDILL and CONNOR, District Judges.

GOFF Circuit Judge.

In the Superior Court of Swain county, N.C., the defendants in error commenced this suit against the plaintiff in error and others to recover damages alleged to have been sustained because of breaches of certain contracts, charged to have been made in connection with the manufacture of timber into lumber, on certain lands located in said county. The summons issued on the 21st day of November, 1904, and was returned by the sheriff on the 28th of that month indorsed as follows:

'Due search made, and none of the defendants found in my county.'

Affidavits on which to base a warrant of attachment and an order of publication were filed, the former being issued on November 21, 1904, and the latter on December 5, 1904. The attachment was levied November 21, 1904, on the land mentioned, and it is claimed by defendants in error that publication was made of the summons and attachment for four consecutive weeks commencing December 8, 1904. The complaint was filed in the clerk's office of the superior court of Swain county, on the 23d day of February, 1905. On the 2d day of August, 1905, Charles R. Flint, one of the defendants named in the complaint, filed his petition in said superior court, together with a sufficient bond, praying for the removal of the case to the Circuit Court of the United States, as between him and said plaintiffs, upon the grounds set forth in his petition. The said superior court refused to grant the order of removal, and proceeded to hear and dispose of other motions in the case. On the 7th of December, 1905, Charles R. Flint, through his counsel, filed in the office of the clerk of the United States Circuit Court for the Western District of North Carolina, at Asheville, a complete transcript of the record of said cause from the state court, and the case was then duly entered upon the docket of the United States Circuit Court.

At the same time counsel for Charles R. Flint filed with the clerk of the last mentioned court a memorandum in writing which, after reciting the said cause, read as follows:

'To the clerk of the Circuit Court: Take notice that we appear as counsel for the defendant, Charles R. Flint, in the above-entitled action.'

The next action taken in the Circuit Court was on March 3, 1906, when the plaintiffs below moved to remand the case to the superior court of Swain county, which motion was, after argument of counsel for plaintiffs and defendant Flint, overruled by the court. On May 14, 1906, Flint moved the court to dismiss the suit 'for imperfect service of process,' and an order was then entered denying that motion, 'the court being of opinion that said question has been adjudicated by the state court. ' To this action of the court said defendant excepted, and assigns the same as error. The court then allowed Flint 60 days in which to file his answer. The case was duly matured, came on to be heard, and was tried before a jury, which returned a verdict in favor of the plaintiffs, on which a judgment was entered against Flint, on November 28, 1907, for the sum of $85,000, and costs. The court also directed that the interest of Flint in the land on which the warrant of attachment had been levied should be sold, and the proceeds thereof be applied to the satisfaction of the judgment. The writ of error now before us was then sued out. The assignments of error relate to many questions arising during the pendency and trial of the suit, but few of which, as we see the case, it will be necessary to consider.

The petition filed by Flint in the superior court of Swain county, on August 2, 1905, was duly verified, was accompanied by a proper bond, and clearly set forth sufficient grounds for the removal of the cause to the Circuit Court of the United States. The jurisdiction of said state court over the case actually ceased when said petition and bond were filed, and all of the proceedings taken in that court subsequent thereto were coram non judice and absolutely void. Gordon v. Longest, 16 Pet. 97, 104, 10 L.Ed. 900; Virginia v. Rives, 100 U.S. 313, 316, 25 L.Ed. 175; Railroad Company v. Koontz, 104 U.S. 5, 14, 26 L.Ed. 643.

The insistence of counsel for defendants in error is that, even if it be that the service was imperfect; that the statute had not been complied with so far as the summons, order of publication, and the attachment were concerned; that such irregularities were waived by the general appearance of Flint, who by his counsel they insist submitted himself to the jurisdiction of the court below. This claim is based upon the fact that counsel for Flint filed the petition for removal in the state court; that they filed the memorandum referred to with the clerk of the court below; and that they appeared and argued the motion made by defendants in error to remand the case to the state court. These contentions are without merit. The filing of a petition to remove a cause from a state to a federal court does not amount to a general appearance. Wabash Western Railway v. Brow, 164 U.S. 271, 17 Sup.Ct. 126, 41 L.Ed. 431; International Text-Book Co. v. Heartt, 69 C.C.A. 127, 136 F. 129. The paper filed with the clerk by counsel for Flint, advising that official that they so appeared, was simply a notice that they, in effectuating the removal from the state court, would file the record of the cause in the federal court. That court was not then in session, and surely the requirement of the clerk that counsel should file in his office a memorandum indicating for whom they appeared cannot be construed as a general appearance, when what was intended is kept in view-- the lodging of a record which had been removed from a state court, by a proceeding that was of itself a special appearance. Nor can it be consistently held that the resistance to the motion to remand was a general appearance. All of those things that were essential to secure the final lodgment of the case on the docket and records of the court below were properly done under the special appearance made in the state court, when the petition for removal was filed. To hold otherwise would, in the light of the record of this cause, be painfully technical, would do violence to the evident intention of counsel, which was to challenge the jurisdiction of the court on the ground stated in the motion to dismiss, and would impair the rights intended to be secured to nonresidents by the acts of Congress authorizing the removal of cases against them from a state to a federal court. While it is most undoubtedly true that a general appearance will be held to be a waiver of all objections to the form or the manner of service of the subpoena, and that it will be taken as the equivalent of personal service of process, and also that by such appearance a proceeding that theretofore was in rem may be thereby converted into a personal action, nevertheless we find nothing in the record of this cause indicating that the plaintiff in error ever intended to make or in fact ever made such a general appearance in the court below as renders applicable to this case the conclusions of law we have just referred to. It is only where a defendant pleads to the merits without insisting upon the illegality relating to the process that the objections to it are held to have been waived. In the case at bar the plaintiff in error did not plead until after his motion to dismiss for lack of proper service had been overruled, and then only when required to do so. He first asked for the removal of the case by filing a petition in the state court, for which purpose his appearance there was special as it was when in the court below he tendered the record to be docketed, and opposed the motion to remand. When he moved to dismiss for want of jurisdiction because of defects in the proceedings, he did not submit himself personally to the jurisdiction of the court below, as he would have done by a general appearance, or by pleading to the merits.

It is quite clear that the court below erred in holding that the questions involved in the motion of defendant below to dismiss had been disposed of by the state court. While it is true that the record from that court disclosed that such motion had been denied, it also made it clear that such action was taken after the case had in fact been removed into the federal court. It is we think well settled that the party causing a case to be removed to a federal court has a right, after the removal, to the judgment of that court on all questions relating to the validity of the service of process as well as upon the merits of the case.

This is because of the fact that jurisdiction of the state court over the defendant so removing is involved, and that matter, even though the state court may have deemed it proper to pass upon it, may nevertheless be again considered and adjudged by the federal court. Wabash Western Railway v. Brow, 164 U.S. 271, 278, 17 Sup.Ct. 126, 41 L.Ed. 431; Courtney v Pradt, 196 U.S. 89, 92, 25 Sup.Ct. 208, 49 L.Ed. 398; Remington v. Central Pacific Railroad Company, 198 U.S. 95, 25 Sup.Ct. 577, 49 L.Ed. 959; Tortat v. Hardin Min. & Mfg. Co. (C.C.) 111 F. 426; Lathrop, Shea & Henwood Co. v. Interior C. & I. Co. (C.C.) 150 F. 666. The court...