Mahr v. Union Pac. R. Co.

• Decision Date: 01 January 1905
• Docket Number: 232.
• Citation: 140 F. 921
• Parties: MAHR v. UNION PAC. R. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

140 F. 921

MAHR v. UNION PAC. R. CO.

No. 232.

United States Circuit Court, E.D. Washington, Southern Division.

January 1, 1905

McDonald & Rupp, for plaintiff.

W. W Cotton, L. S. Wilson, Arthur C. Spencer and James G. Wilson for defendant.

WHITSON District Judge.

Plaintiff brought this action for personal injuries alleged to have been sustained upon the railroad of defendant in the state of Wyoming, while en route from Denver to Walla Walla, in pursuance of an agreement with the defendant to transport him, his household furniture, and domestic animals to the last-named place. Service was made upon one Robert Burns, the general agent of the Oregon Railway & Navigation Company at Walla Walla. On March 10th the defendant moved to quash the service of summons. Plaintiff contends that by paragraph 3 of said motion the defendant made a general appearance notwithstanding the use of the appropriate words which usually attend an appearance intended to be limited and special. That paragraph reads as follows:

'That the pretended cause of action sued upon herein by the plaintiff arose, if at all, wholly within the state Of wyoming, and that the sole and only jurisdiction in which said pretended cause of action could be maintained or prosecuted would be in the said jurisdiction in said state of Wyoming, wherein said cause of action arose, or in the jurisdiction of the home office of said defendant corporation in the city of Salt Lake, county of Salt Lake, state of Utah and that said pretended cause of action did not arise within the state of Washington, and the subject-matter of the same was not and never has been and is not now within said state of Washington.'

Plaintiff, relying upon his contention, on the 13th of April filed his motion for default. As the decision of one must conclude the other, the two motions will be considered together.

Jurisdiction over the subject-matter is used by the courts in two senses; one where the court by the act of its creation is not empowered to consider or deal at all with that which is in controversy, and the other where the court is empowered to consider controversies of the nature presented, but, owing to the property not being within the territorial jurisdiction of the court, or for other like reason, it cannot entertain the particular grievance complained of. It is in the latter sense that the expression 'want of jurisdiction over the subject-matter' is used as applied to appearances, for jurisdiction to decide that which the court is not empowered to pass upon of course cannot be conferred by the appearance of a party. The right to make a special appearance is not a substantial one inherently existing; it is a privilege allowed by practice, and it must be exercised under the rules of procedure. Whenever a litigant appears to deny jurisdiction over his person, which would otherwise exist but for the failure to pursue the methods prescribed by law for bringing him into court, he must confine himself to that particular branch of jurisdiction. It is a matter of indifference to him whether or not the court has jurisdiction over the subject-matter; so long as it has no jurisdiction over his person, it cannot in any way injuriously affect his interests. He must therefore be content to stop with the suggestion that the summons or notice, as the case may be, required by the law to be served, has not been served, and that the court is therefore not entitled to deal with him in the absence of such service. As to whether the court has jurisdiction over the matter embodied in the complainant he need give himself no concern. If he does, in a transitory action, and enters upon a discussion of that question or makes a challenge as to that point, he waives the want of service and enters voluntarily into a controversy which goes to the merits, and thereby submits to the jurisdiction of the court over his person. If the action is transitory, it is triable in any competent forum where jurisdiction of the person may be obtained. It follows that the defendant can voluntarily appear and confer such jurisdiction. Such appearance, in the absence of a showing of want of authority by the attorneys making it, binds the defendant.

In Southern Pacific Company v. Denton, 146 U.S. 205, 13 Sup.Ct. 44, 36 L.Ed. 942, plaintiff was a citizen of Texas, residing in the Eastern district thereof, and the defendant was a corporation incorporated by the laws of Kentucky, a citizen of that state, and a resident of the Western district of Texas, doing business and having an agent in said district. While the court held that the defendant had not waived the right to object to the jurisdiction in that particular case, in the discussion it was said:

'It may be assumed that the exemption from being sued in any other district might be waived by the corporation by appearing generally, or by answering to the merits of the action without first objecting to the jurisdiction.'

In St. Louis & San Francisco Railway v. McBride, 141 U.S. 127, 11 Sup.Ct. 982, 35 L.Ed. 659, it was held that, when a defendant, sued in a circuit court of the United States, appears and pleads to the merits, he waives any right thereafter to challenge the jurisdiction of the court on the ground that suit has been brought in the wrong district; and in Texas & Pacific Railway v. Cox, 145 U.S. 593, 12 Sup.Ct. 905, 36 L.Ed. 829, that a demurrer to a petition, upon the ground that it does not set out a cause of action, without taking notice of the fact that the suit is brought in the wrong district, is a waiver of objection on account of the latter cause.

The action is therefore transitory, and the question arises whether there has been a general appearance by the defendant. To resolve that question we must consider the language used. To say that 'the subject-matter of the same was not and never has been and is not now within said state of Washington ' is equivalent to a demurrer that 'the court has no jurisdiction of the subject-matter of the action,' under subdivision 1, Sec. 4907, Ballinger's Ann. Codes & St., for it is said in...