McCoy v. Watson

Decision Date18 March 1929
Docket Number27092
Citation121 So. 116,153 Miss. 416
CourtMississippi Supreme Court
PartiesMCCOY et al. v. WATSON. [*]

Suggestion of Error Overruled May 6, 1929.

(In Banc.)

1 APPEARANCE. Appearance of nonresident defendant for sole purpose of removal was not such appearance that, when cause was remanded, defendant was in state court without necessity of valid process (Code 1906, sections 540, 920).

Where nonresident defendant in attachment suit was not brought in by publication of summons, as required by Code 1906, section 540, and attempted service of summons on agent was not within county where suit was brought, in accordance with requirement of section 920, the appearance of such nonresident defendant in state court for sole purpose of taking statutory steps for removal of cause to federal court did not constitute such an appearance that, when cause was remanded, defendant was then in state court without necessity of further process.

2 COURTS. Decisions of federal courts control as to consequences of appearance for purpose of securing removal.

Questions relating to consequences of appearance in state court for purpose of securing removal to federal court must be determined in accordance with decisions of United States supreme court, in that right of removal is one granted by federal statutes under the Federal Constitution.

HON. T P. GUYTON, Chancellor.

APPEAL from chancery court of Kemper county, HON T. P. GUYTON, Chancellor.

Attachment suit by Mrs. Grovie Watson, executrix, against M. A. McCoy and others. Decree for complainant, and defendants appeal. Reversed and remanded.

Decree reversed and cause remanded.

Wyatt Easterling, Currie & Amis and J. H. Mitchell, of La Feria, Texas, for appellants.

The appearance of the corporation in the state court for the purpose of presenting its petition for removal, whether that appearance was specifically limited to the special purpose aforesaid or not specifically so limited, did not have the effect of a general appearance, or constitute a waiver of the corporation's right to have the process quashed. The leading case upholding this rule is Wabash Etc. Ry. Co. v. Brow, 164 U.S. 271, 17 S.Ct. 126. See, also, Macario v. Alaska Gastinear Mining Co. (Wash.), 165 P. 73. We may assume that there can now be no question that the United States district court possessed full jurisdiction of the case at the time the corporation moved to quash the process. If so, under the rule above announced, its quashal of this process and dismissal of the corporation out of the suit was, as to the corporation, a final decree entered by a court having jurisdiction, and should be determinative of the question here discussed. Sec. 37, Judicial Code, sec. 80, Title, 28 U. S. Revised Statutes.

If the petition and proceedings for removal were regular on their face, then the United States district court acquired jurisdiction and having such jurisdiction, all of its orders and acts are legal and valid, until by amendment, dismissal, quashing of citation or otherwise, the federal question is eliminated, or the removing defendant of diverse citizenship from plaintiff is dismissed out of the suit. In that event, if a controversy still exists between the parties to the suit, the federal court has ceased to have jurisdiction, and its duty is to remand. When a remand takes place under such circumstances, the orders of the federal court made while it had lawful jurisdiction, cannot be considered null, and full force must be given to them. This is easily seen in the case of an amended pleading removing the federal question. When the case goes back to the state court, it naturally and necessarily goes back as a case between the parties on the cause of action set up in that amended pleading. So, if there has been a settlement with the removing defendant whereby the federal question is eliminated, the case goes back to the state court as between the remaining parties, and certainly it could not be contended that the plaintiff would be entitled to take judgment by default or otherwise against the defendant with whom he has made the settlement. So, in the case of a dismissal as to the removing defendant, either as a result of quashing process or by plaintiff's voluntary action confirmed by order of the court to that effect, that defendant is definitely and finally out of the case. If, after remand, the plaintiff desires to bring him back into the case, he would undoubtedly have the right to do so, but only upon new process and perhaps new pleadings. To hold otherwise would be to hold that the lawful orders entered by a court while it had jurisdiction under the removal statute, can be set aside without proceedings or notice of any kind, and, indeed, do not need to be set aside because, though legal, they are void. The only conceivable rule, and the one in consonance with all cases available, is that the orders remain in force on remand, if the federal court had jurisdiction at the time it made them until such time as such orders may be by proper proceedings set aside.

In the line of cases holding that after remand a judgment by default may be taken in the state court against the removing defendant who had not filed an answer in that court, the decisions have been uniformly based on the ground that the federal court had never acquired jurisdiction because the case had been improperly removed to that court, and that the attempt at removal would not excuse the defendant from filing his answer in the state court in view of that fact. See Morbeck v. Bradford-Kennedy Co. (Idaho), 113 P. 89, and the cases there cited and quoted from, in which the courts again and again emphasize the point that the allowance of the default was based solely on the fact that the federal court has acted without jurisdiction and that the case has never been legally and regularly removed from the state court, and that the case had never been properly removed from the circuit court. As said in the Morbeck case, "Had it turned out that the removal was properly made and that the defendants had made the proper showing for removal, there would have been no question about a default in the federal court. On the other hand, when it turned out that the defendants had never brought themselves within the federal statute authorizing the removal it necessarily followed that they were subject to the practice and procedure prescribed by the state laws governing the action. The case was in point of both fact and law one of which the federal court had no jurisdiction, and so the jurisdiction was never transferred, except in-so far as it was necessary for the federal court to decide the sole question of jurisdiction." These cases will repay careful reading, and will demonstrate the proposition that they, and all the cases above cited, are entirely consistent, and that the basic question is always whether the federal court did or did not possess jurisdiction at the time when it made the orders, rulings, etc., in question.

Bozeman & Cameron, for appellant Rush.

We desire to present only one question: Whether there is sufficient jurisdiction of the person of the main defendant, Al Parker Securities Company, to support any decree against the garnishee defendant?

It is not contended by appellee that the chancery attachment statute was followed in respect to publication. Reliance is placed solely on the proposition that the main defendant below entered its appearance, thus dispensing with the necessity of publication. Filing of petition for removal is not a general entry of appearance. This proposition has been already discussed, but we desire to advert to it briefly, because of a recent decision of this court on which we assume chief reliance is placed by our adversaries. We refer to Britton v. Beltzhoover, 147 Miss. 737, 113 So. 346. A casual reading of that case would lead to the conclusion that the general principles announced were susceptible of this construction. A close study of the case, however, will show that it was not the intention of the court to hold that the mere filing of a petition to remove a case from the state court was a general entry of appearance in the state court. There are two essential differences between the case there presented and the one here before the court. (1) The defendant there filed a motion for time in which to plead and, (2) the petition for removal was there granted. We submit that it was not the purpose of this court to align itself with that small group of states in which it has been held that the filing of a petition to remove is a general appearance. Particularly do we urge this, in view of the strong stand taken by the vast majority of the states and the supreme court of the United States. See Railway Co. v. Brow, 164 U.S. 271, 41 L.Ed. 431; Clark v. Wells, 203 U.S. 164, 51 L.Ed. 138; Commercial, etc., Co. v. Davis, 213 U.S. 245, 53 L.Ed. 782; McLaughlin v. Hallowell, 228 U.S. 278, 57 L.Ed. 835; Hassler v. Shaw, 271 U.S. 195, 70 L.Ed. 900. It is clear that the court in Britton v. Beltzhoover, meant to hold only that under the facts of that case--involving a motion for time in which to plead, followed by petition for removal and order overruling same--there had been a general entry of appearance. We submit, further that the holding would not be authority for deciding that in this case the main defendant entered its appearance generally.

The order discharging the main defendant put it out of court finally. Particularly is this conclusion correct in the light of what transpired after the filing of the petition to remove. It will be recalled that the state court duly considered the petition to remove and it was allowed. Thereafter the federal court, after due argument, overruled a motion to remand and assumed jurisdiction...

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