Hunt v. Pearce

• Decision Date: 16 October 1922
• Docket Number: 5872.
• Citation: 284 F. 321
• Parties: HUNT v. PEARCE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

284 F. 321

HUNT v. PEARCE et al.

No. 5872.

United States Court of Appeals, Eighth Circuit.

October 16, 1922

William Neff, of Muskogee, Okl. (L. E. Neff, of Muskogee, Okl., on the brief), for appellant.

Riley Cleveland, of Okemah, Okl., for appellees.

Before SANBORN and STONE, Circuit Judges, and MUNGER, District Judge.

SANBORN Circuit Judge.

This is an appeal by Mrs. M. E. Hunt, plaintiff below, from an order of the District Court that she be enjoined from proceeding further in this action in the district court of Muskogee county, Okl., wherein this action was commenced, and whence it had been removed to the court below on the petition and bond of T. Pearce, one of the defendants. The action had been commenced in the state court by the plaintiff, a resident and citizen of Oklahoma, against T. Pearce and Mary E. Pearce citizens and residents of Arkansas, by filing a complaint in that court, on November 27, 1920, to recover of them $26,500 on account of their alleged breaches of an agreement she alleged she had made with them, and on account of their alleged fraudulent and oppressive acts. On the same day the plaintiff caused a summons to T. Pearce to be issued on this complaint, which was served on him in Oklahoma on November 29, 1920, and caused a summons to be issued to Mary E. Pearce and to be delivered to the sheriff of Muskogee County, who made a return thereon on or before December, 1920, that she could not be found. On November 27, 1920, the plaintiff made an affidavit of the nature of her cause of action, and that each of the defendants was a nonresident of the state of Oklahoma and resided in the state of Arkansas and caused a writ of attachment of the property of the defendants to issue to the sheriff of Muskogee county, which commanded him to attach so much thereof as would satisfy her claim for $26,500. She caused the writ to be delivered to the sheriff, and by virtue thereof he attached the property of the defendants to satisfy the plaintiff's claim on November 29, 1920.

On the 6th day of December, 1920, the defendant T. Pearce made verified by his oath, and filed in the district court of Muskogee county, a sufficient petition for a removal of this cause to the federal court below. On the same day Mr. Cleveland served on the plaintiff and her attorneys a written notice, which he signed, 'Riley Cleveland, Attorney for Defendants,' that the defendants would apply to the state court on December 9, 1920, to remove this case to the federal court below. On December 13, 1920, a proper bond with the requisite sureties for such removal was made and filed by the defendant T. Pearce, and approved by the judge of the state court, and that court ordered the case removed to the federal court below, and stayed further proceedings therein in that court. On January 27, 1921, the plaintiff moved the court below to remand this cause to the state court, and on April 18, 1921, that motion was denied, and the court below enjoined the plaintiff, her agents and attorneys, from proceeding further in this cause in the state court. In the meantime, on February 2, 1921, the state court had set aside its order staying proceedings in that court against the defendant Mary E. Pearce, and had ordered her to answer the complaint in that court, but had permitted its stay of proceedings against the defendant T. Pearce in that court to stand.

On the 9th day of February, 1921, the defendants filed their amended petition for an injunction against further proceedings by the plaintiff and her attorneys against Mary E. Pearce or T. Pearce in the state court. On the 10th day of February, 1921, the defendants answered the petition on the merits, and on the 18th day of April, 1921, the court below ordered the issuance of a perpetual injunction against further proceedings in the state court by the plaintiff, Mrs. M. E. Hunt, her agents and attorneys. It is from this order that the appeal in this case was taken.

Counsel for the plaintiff below argue that the enjoining order of the court below against her further proceeding in this action in the state court should be reversed, because the defendant Mary E. Pearce did not join in the petition for the removal of the case from the state court to the federal court. If, at the time of the filing of the petition for the removal, or at the time of the presentation of the petition and bond for removal to the federal court, she had been served with the summons, or had submitted herself to the general jurisdiction of the state court, her joinder for the application of removal might have been requisite. But no summons had been served upon her, and when, as in this case, an action by a resident and citizen of a state has been commenced in one of the courts of the plaintiff's state against two defendants, who are residents and citizens of another state, upon their alleged joint liability, and the summons has been served upon one of them, but has not been served upon the other, the defendant served may lawfully remove the case to the proper federal court on his own petition and bond, without any petition, application, or action by the defendant not served. Fallis v. McArthur, Fed. Cas. No. 4,627; Tremper v. Schwabacher (C.C.) 84 F. 413, 415, 416; Bowles v. H. J. Heinz Co. (C.C.) 188 F. 937, 938; Carlisle v. Sunset Telephone & Telegraph Co. (C.C.) 116 F. 896. The reason for this rule is that in such a case the defendant served is the sole defendant subject to the general jurisdiction of the state court. The defendant not served may never be served, or may be served after the time has expired for the defendant served to apply for a removal, and unless the latter can make an effective application alone his right to the removal might be lost.

To escape this settled rule counsel contend that the defendant Mary E. Pearce submitted herself to the general jurisdiction of the state court by Mr. Cleveland's signature, as attorney for the defendants, to his notice of December 6, 1920, of his application on December 9, 1920, to remove the case to the federal court, and by the recital in the state court's order of removal of December 13, 1920, that:

'Upon the application of the defendants herein for an order removing this cause to the District Court of the United States for the Eastern District of Oklahoma, and it appearing that the defendants have filed their petition for such removal in due (. . .) of law, and that the defendants have filed a bond, duly conditioned, with good and sufficient surety, as provided by law, and that the defendants have given notice to the plaintiff of the filing of said petition and bond: * * * Now, therefore, * * * it is hereby ordered and adjudged that this cause be, and the same is, hereby removed to the District Court of the United States for the Eastern District of Oklahoma.'

But (1) the filing of or joinder in a petition or application for the removal of a cause from a state court to a federal court and the proceedings on such a petition constitute a special appearance for the purpose of removal only. They are not equivalent to a general appearance. They do not subject the person or property of the petitioner to the general jurisdiction of the court, or waive any defects in or objections to the process, the service, or the lack of service thereof. Cain v. Commercial Publishing Co., 232 U.S....