Purdy v. Wallace Muller & Co.

• Decision Date: 21 June 1897
• Citation: 81 F. 513
• Parties: PURDY v. WALLACE MULLER & CO., Limited.
• Court: U.S. District Court — District of Massachusetts

81 F. 513

PURDY v. WALLACE MULLER & CO., Limited.

United States Circuit Court, D. Massachusetts.

June 21, 1897

Arthur Lord and James M. Newell, for plaintiff.

Charles P. Searle and William G. Thompson, for defendant.

BROWN District Judge.

This action is for breach of contract, and was begun by foreign attachment in the state court against the defendant, a corporation of New Jersey, not incorporated under the laws of Massachusetts, and having no place of business, officer agent, or attorney therein. The only service was upon the garnishees, the case having been removed before the giving of notice to the defendant as required by the state statute in cases of foreign attachment. The plaintiff now moves to remand upon the ground that by giving bond to release the attachment, made by trustee process, the defendant has submitted to the exclusive jurisdiction of the state court and waived the right to remove. As suggested by counsel for the defendant, the proposition that, as the price of a removal granted by an act of congress, a defendant must permit an attachment to remain upon his property, and cannot avail himself of the provisions of the state law for dissolving the attachment, involves an extraordinary limitation upon a right founded by the constitution of the United States, and expressly granted by an act of congress. There appears no sound reason for such a limitation. In Kern v. Huidekoper, 103 U.S. 485, it was said:

'When the prerequisites for removal have been performed, the paramount law of the land says that the case shall be removed, and the case and the res both go to the federal court. The fact that the state court, while the case was pending in it, had possession of the subject-matter of the controversy, cannot prevent the removal; and when the removal is accomplished the state court is left without any case, authority, or process by which it can retain possession of the res. The suit and the subject-matter of the suit are both transferred to the federal court by the same act of removal, or when a bond for the delivery of the property has been taken, as in this case, the bond, as the representative of the property, is transferred with the suit. There is no interference with the rightful jurisdiction of the state court, and no wrestling from its possession of the property which it has the right to retain.'

Furthermore, by the act of March 3, 1875, Sec. 4 (18 Stat. 471), the validity of attachments in the state courts, and of all bonds, undertakings, or security given by either party, is preserved after removal. This is a satisfactory indication that congress did not intend that the giving of such a bond should prevent a removal.

In support of the motion to dismiss, the defendant contends that jurisdiction of its person has been acquired by neither court, and that it now has the right to claim the same personal privilege which it could have claimed had the case been begun in this court, and that without jurisdiction of the person the case cannot proceed, and therefore should be dismissed. The defendant relies upon the case of Goldey v. Morning News, 156 U.S. 518, 15 Sup.Ct. 559, and quotes the language of Mr. Justice Gray:

'The theory that a defendant, by filing in the state court a petition for removal into the circuit court of the United States, necessarily waives the right to insist that for any reason the state court had not acquired jurisdiction of his person, is inconsistent with the terms as well as with the spirit of the existing act of congress regulating removals from a court of a state into the circuit court of the United States. * * * The legislature or the judiciary of a state can neither defeat the right given by a constitutional act of congress to remove a case from a court of the state into the circuit court of the United States, nor limit the effect of such removal.'

Admitting, merely for the purposes of the motion to dismiss, that no jurisdiction of the person has been acquired, and that the defendant may now, in this court, insist upon the point, what is the proper consequence? Does it follow that the case should be dismissed? The case of Railway Co. v. Brow, 164 U.S. 279, 17 Sup.Ct. 128, which cites the foregoing language of Mr. Justice Gray, announces the rule that:

'The party has a right to the opinion of the federal court in every question that may arise in the case, not only in relation to the pleadings and merits, but to the service of process, and (that) it would be contrary to the manifest intent of congress to hold that a party who has a right to remove a cause is foreclosed as to any question which the federal court can be called upon under the law to decide.'

It is significant, however, that in the latter case Mr. Justice Fuller, in the first sentence of the opinion, distinguishes the case before him from one involving a proceeding in rem or quasi in rem. These two cases establish the principle that in removed cases the federal courts will determine according to their own principles of jurisprudence the question of whether jurisdiction of the person has been acquired, but they do not decide that the courts of the United States will recognize no jurisdiction as valid unless based upon personal service or voluntary submission.

There is a third basis of jurisdiction recognized by the supreme court of the United States, namely, the custody of a res. In Pennoyer v. Neff, 95 U.S. 714, 723, it is said:

'Every state owes protection to its own citizens, and, when nonresidents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such nonresidents to satisfy the claims of its citizens. It is in virtue of the state's jurisdiction over the property of the nonresident situated within its limits that its tribunals can inquire into that nonresident's obligations to its own citizens, and the inquiry can then be carried only to the extent necessary to control the disposition of the property.'

In Cooper v. Reynolds, 10 Wall. 317, it is said:

'So the writ of garnishment or attachment, or other form of service on a party holding a fund which becomes the subject of litigation, brings that fund under the jurisdiction of the court, though the money may remain in the actual custody of one not an officer of the court.'

See, also, Freeman v. Alderson, 119 U.S. 185, 7 Sup.Ct. 165.

In the case of St. Clair v. Cox, 106 U.S. 353, 1 Sup.Ct. 357, Mr. Justice Field says of the case of Pennoyer v. Neff (wherein also he delivered the opinion):

'We held that personal service of citation on the party or his voluntary appearance was, with some exceptions, essential to the jurisdiction of the court. ' 'The exceptions related to those cases where proceedings are taken in a state to determine the status of one of its citizens towards a nonresident, or where a party has agreed to accept a notification to others, or service on them, as citation to himself.'

It is obviously not the purpose of the removal statutes to destroy a valid jurisdiction of the state court. Nor is it the purpose to secure to a defendant the right to litigate in the district of his own domicile, since...