Kinne v. Lant

• Decision Date: 13 May 1895
• Docket Number: 8,056.
• Parties: KINNE et al. v. LANT.
• Court: U.S. District Court — Eastern District of Michigan

68 F. 436

KINNE et al. v. LANT.

No. 8,056.

United States Circuit Court, E.D. Michigan.

May 13, 1895

Lawrence & Butterfield and Bowen, Douglas & Whiting, for plaintiffs.

Fraser & Gates, for defendant.

SWAN District Judge.

This is an action on the case commenced in the circuit court for the county of Washtenaw, on the 26th day of September, 1894, by the service of a summons upon the defendant, by the sheriff of Washtenaw county. On the 28th of September defendant filed his petition in the circuit court for the county of Washtenaw, for the removal of the cause to this court. This petition was duly verified, and was accompanied by the bond required by the act of congress of March 3, 1887, and it was qualified upon its face by the statement that the attorneys for the petitioner appeared specially for the purpose of the petition, and not otherwise. The petition was not presented nor called in any manner to the attention of the state court. On the next day the defendant entered, in the state court, a motion to set aside the service of process upon him, on the ground that such service was made while he was in attendance upon this court as a suitor in equity, and during the pendency of a hearing herein in a cause in which the defendant was complainant, and the plaintiffs in this cause and others, were defendants, and therefore was privileged from the service of process of the state court. This motion was erroneously entitled in the circuit court for the county of Wayne, and carefully disclaimed any and all intention of entering an appearance to the action in the state court, except for the purpose of the motion, and expressly limited defendant's appearance to said purpose only. The notice attached to the motion notified the attorneys for plaintiffs that the motion was entered in the special motion book kept by the clerk of the circuit court for the county of Washtenaw, in his office, in the city of Ann Arbor, in said county, and that the attorneys for the defendant 'appeared specially in the cause, for the purpose of said motion only, and that the making of said motion is in nowise a waiver of any proceedings to remove said cause to the circuit court of the United States for the Eastern district of Michigan,' and also that the proceedings for such removal were for the primary purpose of invoking the judgment of said United States court upon the jurisdictional question of said defendant's privilege as a suitor therein, upon the facts set forth in said motion and affidavit. Notice of this motion was duly served upon the attorneys for the plaintiffs in the cause, in the state court, on the day of the filing of the same in said court. On the 2d day of October, 1894, upon defendant's application to the court, the circuit court for the county of Washtenaw made an order removing the cause to this court upon the said petition of defendant. After the filing of the transcript of the record in this court, the motion to vacate and set aside the service of the process made upon defendant, Lant, was noticed for hearing in this court. Upon the application of plaintiff's counsel, the hearing was postponed to meet his convenience, and, at the adjourned time, was duly heard. The defendant, Lant, is a resident of Evansville, Ind., and a citizen of said state. The plaintiffs are citizens of Michigan. At the time of the service of the summons upon defendant, a hearing was in progress in the suit pending in this court, in equity, wherein said Lant is complainant, and the plaintiffs in this cause, and others, are defendants. Under the advice of his counsel, whose affidavit establishes that he required the presence of Lant in the equity cause upon the argument of the demurrer to the bill of complaint filed by him in this court, Lant came into this district both to attend the argument and also to confer with his counsel, at the latter's request, concerning certain matters of fact connected with said equity cause, and the management thereof. It also appears, by Lant's affidavit and that of his counsel, that he came here, upon that occasion, under the assurance of his counsel, Jasper P Gates, Esq., that while in the Eastern district of Michigan, for the purposes aforesaid, he would be privileged from the service of legal process, and would be protected therefrom by this court, in which his suit was pending. The demurrer to the bill in equity was heard in part on the 21st of September, 1894, and deponent was present, as he states, pursuant to said advice, and for the purposes above stated. Because of other business before the court, the argument of the demurrer was not concluded, and the further hearing thereof was postponed, under the intimation that the court would hear the conclusion of the argument during the then present week. Lant was advised by his counsel that his privilege and exemption from the service of process, as a party to the cause in equity, continued, and he stayed, for the purpose of consulting and advising with his said counsel with reference to the cause, and its conduct, until the conclusion of the argument upon the demurrer. Pending the resumption of that argument, and under the advice of his counsel, Lant remained in the district. While so waiting the convenience of the court in the premises, Lant went to the city of Ann Arbor, in this district for the purpose of making inquiries relative to certain matters of fact connected with his cause in this court, and while there was served with the summons at the suit of the plaintiffs in this cause, which service he now asks to be vacated and held for naught, on the ground that he was privileged therefrom as a suitor attending this court.

1. The first ground of objection on the part of the plaintiffs to the motion is that the same is not properly before the court, because it was entered in the state court after the petition and bond for removal had been filed; and, coupled with this, it was also urged that the motion, being entitled in the circuit court for the county of Wayne, instead of the circuit court for the county of Washtenaw, was not properly before the court. Both these objections are purely technical, and if they possessed any original force, have been waived by the conduct of plaintiffs' counsel in recognizing them as properly before the court, and requesting postponement of the argument upon the motion, thereby leading the defendant to assume the regularity of the paper and the procedure for the relief prayed. In this view of the matter, it is unnecessary to decide whether the state court lost jurisdiction of the cause by the mere act of filing the petition and bond for its removal, so that the subsequent filing of the motion in that court, before the petition and bond for removal were called to the attention of the state court, was entirely nugatory. It would seem, notwithstanding it has frequently been said in terms 'that the filing of the petition and bond for removal deprive the state court of jurisdiction,' that some further act would be necessary to work that result, and that it would not be successfully claimed that a party would be entitled to the removal of a cause by the mere deposit and filing of the papers with the clerk of the state court, without advising the court itself of his action, and asking, at least, for the usual order of removal. He could not, for example, sit silently by, and permit the court to dispose of his cause, without insisting upon the rights to which his compliance with the removal act would entitle him. But inquiry into the effect of the mere filing of the petition and bond is made immaterial by the recognition by plaintiffs' attorneys of the motion as one proper to be heard in this court, and ignoring the clerical error in the name and the irregularity, if any, of filing the motion in the state court, after having filed therein the petition and bond for removal. Had these objections been promptly made, and notified to counsel as objections to the propriety of the motion, a different question would have been presented.

2. The next objection made to the motion is that the filing of the petition for removal was an appearance and a waiver of any objection of the service of process. If the petition for removal had been unqualified, this would doubtless defeat the motion, agreeably to the rule that a general appearance heals all defects in the service of process, but this is not the case here. The petition for removal was signed, 'Fraser &amp Gates, attorneys for said petitioner, who appear herein specially for the purposes of the above petition, and not otherwise. ' It is properly conceded by plaintiffs that where a special appearance is entered in the first instance, and limited solely for the purpose of removal, it is not a waiver of defect in the service of process, nor a submission by the party sued to the...