John Cain v. Commercial Publishing Company

• Citation: 58 L.Ed. 534,34 S.Ct. 284,232 U.S. 124
• Decision Date: 19 January 1914
• Docket Number: No. 797,797
• Parties: JOHN W. CAIN, Plff. in Err., v. COMMERCIAL PUBLISHING COMPANY
• Court: United States Supreme Court

232 U.S. 124

34 S.Ct. 284

58 L.Ed. 534

JOHN W. CAIN, Plff. in Err.,

v COMMERCIAL PUBLISHING COMPANY.

No. 797.

Submitted January 6, 1914.

Decided January 19, 1914.

Messrs. Marcellus Geeen, Garner Wynn Green, and Marcellus Green, Jr., for plaintiff in error.

[Argument of Counsel from page 125 intentionally omitted] Messrs. Lovick P. Miles, Luke E. Wright, Sam P. Walker, and Roane Waring for defendant in error.

[Argument of Counsel from Pages 126-128 intentionally omitted] Mr. Justice McKenna delivered the opinion of the court:

Action for libel brought in the circuit court of Hinds county, first district, state of Mississippi. Plaintiff in error (as he was plaintiff in the action, we will so refer to him), alleged himself to be a citizen of the state of Mississippi; that defendant in error, Commercial Publishing Company (referred to herein as defendant), published a libel against him in its 'newspaper called the Commercial Appeal, in the city of Memphis, state of Tennessee, but that the said Commercial Appeal has a large circulation throughout the state of Mississippi and of adjoining states and among foreign cities, and also in foreign countries.' $10,000 actual damages were prayed and $10,000 punitive damages.

Summons was issued and returned, served by the sheriff of the county, as: 'Executed personally on the Commercial Publishing Company' by delivering a copy to E. K. Williams, described as 'its agent, at Jackson, Mississippi,' and to A. C. Walthall, described as 'its correspondent, at Jackson, Mississippi.'

Defendant filed a petition for removal of the action to the district court of the United States, which petition stated the nature of the action, that plaintiff was a resident and citizen of Mississippi, that defendant was a corporation chartered under and by virtue of the laws of Tennessee, that the time for answering or pleading to the declaration had not expired, that defendant had not appeared therein, and that defendant appeared only specially, and for the sole purpose of requesting the removal of the cause to the district court of the United States, and that it did not waive any objections or exceptions to the jurisdiction. A bond, as required by law, was duly given, which was approved, and an order of removal was duly made. The copy of the record was duly filed in the district court of the United States. The defendant then filed in the latter court a plea to the jurisdiction over the person of defendant, appearing specially for that purpose. The plea alleged that the state court had not acquired jurisdiction of the defendant, because (a) it was a corporation of the state of Tennessee, and that it had never taken out a license to do business in Mississippi, nor, at the time of the service of the summons, did it have an agent, office, or place of business in Hinds county, state of Mississippi; (b) the persons upon whom service was made were neither agents nor officers of, nor in any relation to, defendant, for the reason that defendant was not doing business in the state of Mississippi.

Plaintiff demurred to the plea, stating as grounds (1) that it was directed to the service of process, and not to the declaration, as required under § 29 of the Judicial Code [36 Stat. at L. 1095, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 142]; (2) no right exists to enter a special appearance in the Hinds county circuit court under the laws of the state of Mississippi, all appearances being general, even though process be invalidly served.

The demurrer was overruled and issue joined on the plea to the jurisdiction, and the court, having heard the evidence, decided that neither of the persons upon whom summons was served was such an agent of defendant that service upon him would give jurisdiction over the person of defendant, and thereupon found the issue for defendant.

Before judgment was entered, plaintiff called up his motion for judgment for default because defendant had not pleaded or demurred to the declaration within thirty days after the filing of the copy of the record of removal, as required by § 29 of the Judicial Code. The motion was overruled, the court reciting in its order that it was of 'opinion that defendant was not required to plead or demur to the declaration unless the process of summons in the state court was duly served upon an agent of defend- ant upon whom service of process was authorized to be made.'

Judgment was then entered, quashing the service of process and dismissing the action 'without prejudice to the right of plaintiff to sue upon the causes of action set up in the declaration.'

Plaintiff prayed a writ of error to this court upon the question of jurisdiction. It was allowed in open court, the court reciting that it was allowed on the question of jurisdiction only, the court having dismissed the action 'on the sole question that the court had no jurisdiction of the action.'

The question in the case is the simple one of what is the effect of §§ 29 and 38 of the Judicial Code. Section 29 provides for the filing of a petition for the removal of a suit from a state court to the district court of the United States at any time before the defendant is required by the laws of the state to answer or plead, and the filing therewith of a bond for 'entering in such district court, within thirty days from the date of filing said petition, a certified copy of the record in such suit.' It provides that, this being done, the state court shall accept the petition and bond and 'proceed no further in such suit.' It provides further that notice of the petition and bond shall be given to the adverse party, and that 'the said copy being entered within said thirty days, as aforesaid, in said district court of the United States, the parties so removing the said cause shall, within thirty days thereafter, plead, answer, or demur to the declaration or complaint in said cause, and the cause shall then proceed in the same manner as if it had been originally commenced in the said district court.'

Section 38 provides that the district court, in suits so removed, shall 'proceed therein as if the suit had been originally commenced in said district court and the same proceedings had been taken in such suit in said district court as shall have been had therein in said state court prior to its removal.'

The argument is that these sections abolish the practice declared in Goldey v. Morning News, 156 U. S. 518, 39 L. ed. 517, 15 Sup. Ct. Rep. 559, and Wabash Western R. Co. v. Brow, 164 U. S. 271, 41 L. ed. 431, 17 Sup. Ct. Rep. 126. In the former case the following propositions were laid down: (1) The right and procedure of removal of actions from a state court are to be determined by the Federal law. (2) The legislature or the judiciary of a state can neither defeat the right...