McCoy v. Watson

• Decision Date: 06 May 1929
• Docket Number: 27092
• Citation: 154 Miss. 307,122 So. 368
• Court: Mississippi Supreme Court
• Parties: MCCOY et al. v. WATSON

122 So. 368

154 Miss. 307

MCCOY et al. v. WATSON

No. 27092

Supreme Court of Mississippi

May 6, 1929

On suggestion of error. Suggestion of error denied.

For former opinion, see 121 So. 116.

Overruled.

Baskin Wilbourn & Miller, of Meridian, for appellee.

The petition to remove though not a general appearance is under Federal authorities at least a qualified appearance in the state court, sufficient to render unnecessary any further notice of pendency of the suit to enable the court to proceed in rem. Davis v. C., C. & St. L. R. R., 217 U.S 174, 54 Law Ed. 718; Clark v. Wells, 203 U.S. 164 51 L.Ed. 138; Purdy v. Wallace, Miller & Company, 81 F. 513.

GRIFFITH, J. ETHRIDGE, J. specially concurring.

OPINION

GRIFFITH, J.

When this case was before us on its original consideration, it was the theory and contention of appellee that the appearance, so called, of the nonresident defendant, although for the sole purpose of removal to the federal court, constituted such an appearance that when the case was remanded to the state court the said nonresident defendant was thereupon in the state court for all purposes; that is, that it was there personally; that its petition for removal constituted a general appearance. This was the definite theory of appellee in the trial court, and was the theory adopted by that court as evidenced by the entire record and general course of the proceedings therein and by the fact that a general personal decree was rendered against the nonresident defendant.

Addressing ourselves solely to that theory and contention, we held that there had been no general appearance and that no jurisdiction had been acquired of the said nonresident defendant. Appellee now urges the point in her suggestion of error that although the petition for removal was not sufficient to bring the nonresident personally within the jurisdiction of the state court, yet it was sufficient, without the necessity of any process on the said nonresident, so far as concerns the res or the property of the said defendant attached in said suit.

It is expressly provided by our statute relative to attachments in chancery that: "The nonresident debtor shall be made a party to such suit by publication of summons as in other cases." Section 540, Code 1906 (section 311, Hem. 1927 Code). Whatever may be said with respect to the jurisdiction, so called, of the court over the property or the effects attached in such cases, it must be at once admitted that, under modern conceptions of due process in the light of modern decisions upon that subject, the state court cannot take a single step beyond seizing and preserving the attached property unless and until there has been either (1) a valid process served by publication or otherwise on the nonresident debtor, or else (2) a voluntary entry of appearance. There has been no valid process in this case either by publication or otherwise. And thus the question is, has there been any such voluntary appearance in the state court as will enable it to proceed; and since the only act that can be contended for as such is the petition for removal, the definite question is whether such a petition constitutes any voluntary appearance in the state court.

There seems to be no difference of opinion anywhere as to the general definition of what it is that constitutes a voluntary appearance; and such an appearance is generally defined as the overt act by which, or as a result of which, a person against whom a suit has been commenced submits himself to the jurisdiction of the court in the particular suit. The question before us then is: Does a defendant who has not been served with process submit himself to the jurisdiction of the state court by filing therein a petition for removal to the Federal court? We have already held, and so are practically all the decisions everywhere, that such an appearance is not a general or personal appearance. The question therefore narrows down to this: Is it a special appearance in the state court in so far as concerns the jurisdiction of the state court to proceed in rem against the defendant thus specially appearing?

It has long been settled in our state both by statute (section 3946, Code 1906; section 3157, Hem. 1927 Code) and by the general policy of our practice--so long settled that no living lawyer in our state knows of anything else so far as our state practice is concerned--that there is no such a thing as a special appearance in our courts. It is our settled, and long settled, practice that when a party comes in he must come in entirely or else he must entirely stay away. It has been said of our practice that a party cannot in our courts occupy any such "an uncertain and hybrid status as partly appearing and partly not appearing." No lasting exceptions have ever been ingrafted by us upon that rule and it has proved, by this strict adherence to it, of inestimable value by the elimination of technical distinctions and incumbering embarrassments which have beset the procedure in states which still recognize the other rules. But now we are asked to make an exception, and to say that a petition for removal will work an exception, and will furnish an occasion for admitting at least one case of a special appearance. Instead of making the exception, why would it not be sounder and more logical to say that we will keep the rule intact and will therefore hold that as the party has appeared for one purpose we will keep him in for all purposes? In other words, hold him to a general appearance. That was exactly what was contended for in Cain v. Commercial Pub. Co., 232 U.S. 124, 34 S.Ct. 284, 58 L.Ed. 534, and with as much reason as here, but it was rejected; and we have ourselves rejected the contention and adhere to that action.

The whole difficulty has been brought about by the loose use of the term "special appearance" in connection with petitions for removal, whereas the actual legal fact is that a party "appearing" in a state court for the purpose and the sole purpose of presenting a petition for removal has not appeared at all in the legal sense in the state court. In so appearing he does not in any way submit himself to the jurisdiction of the state court. The logic of such a step is expressed by Justice COOLEY, when years ago he was on the supreme court bench of Michigan, in Schwab v. Mabley, 47 Mich. 512 at page 516 11 N.W. 294 at p. 295. He says: "In this case the defendants who had not been served with process came into court for a single purpose only; and that was, not to give the superior court general jurisdiction of their persons, but to object to its jurisdiction, and have the whole case removed to another court. . . . The petition . . . could have but the one purpose -- to avoid the jurisdiction of the superior court; and that the attempt to do this cannot be held to be a voluntary submission to the jurisdiction of that court, is too obvious to require demonstration beyond what the naked statement affords." It is true that the case was dealing with a general appearance, and so was the Cain case, supra; but the underlying logic of the holding is that the sole purpose, the single purpose, and the only effect of a petition to remove, is to object to the jurisdiction of the state court, and to avoid that jurisdiction as to the whole case. How then can a proceeding which declines the jurisdiction, and thereby wholly avoids it, be said to partly confer it? Just here we point to the same logic in the opinion in Wabash W. Ry. v. Brow, 164 U.S. 271, 17 S.Ct. 126, 41 L.Ed. 431 at page 434: "By the exercise of the right of removal, the petitioner refuses to permit the state court to deal with the case in any way." And this latter case, when taken in connection with Goldey v. Morning News, 156 U.S. 518, 15 S.Ct. 559, 39 L.Ed. 517, quotes and applies the language of that case as follows: "The petition for removal" cannot "be treated as submitting the defendant to the jurisdiction of the state court for any other purpose." Beyond the sole and limited purposes of removal, the petition for removal and the effect of that petition goes not a hair's breadth further. The sole effect of the petition is to remove the case and to confer jurisdiction on the Federal court, the jurisdiction to proceed in the Federal court against the petitioner personally if at the time of filing the petition the state court had jurisdiction of the person, or to proceed only against the property seized if the state court had obtained no personal jurisdiction; and the appearance of the defendant by his petition so far as appearance is concerned is in the eyes of the...