Romaine v. Union Ins. Co.

Citation28 F. 625
PartiesROMAINE and others v. UNION INS. CO. and others.
Decision Date09 August 1886
CourtUnited States District Courts. 6th Circuit. Western District of Tennessee

Two insurance companies of Pennsylvania and one of Ohio were made defendants to this bill, along with citizens of Tennessee inhabitants within this judicial district. The subpoena issued against all in the regular form, and was served by the marshal on the resident defendants; and, at the request of plaintiffs' solicitor, he returns that he sent copies of the subpoena and bill to Pennsylvania and Ohio, where the marshals of those districts served them, as they return and certify, upon the non-resident defendants, respectively. Thereupon the two companies belonging to Pennsylvania filed the following paper with the clerk:

'The Union Insurance Company and the Insurance Company of the State of Pennsylvania appear by their counsel, Messrs Heiskell and Heiskell, for the sole purpose of moving the court to quash the return as to said companies, on the ground that it appears on the face of the bill and proceedings that said companies have no residence in the jurisdiction of this court, and no agent within said jurisdiction; and on the ground that the return of the officer in Pennsylvania adopted by the marshal here, is not effective to bring said companies before this court; and said motion is made accordingly. The appearance is entered for no other purpose than as aforesaid, in order that steps may not be taken against said companies, which are not in any manner before the court, or subject to its jurisdiction.

'HEISKELL & HEISKELL, Attorneys.'

This motion was made to vacate the service and return as irregular and unauthorized by law. The plaintiffs opposed the motion on the ground that it is a question of jurisdiction, to be presented only by plea, and that this voluntary appearance cures the irregularity, and submits the defendants to the jurisdiction of the court.

Heiskell & Heiskell, for the motion.

T. W. Brown, (R. G. Brown with him,) contra.

HAMMOND J.

If the defendants had mistaken their remedy to be rid of this service, in view of the fact that it is apparent that they wish to appear specially, and only to take exception to it, and decline to submit voluntarily to be made defendants here, I should have no difficulty in permitting them to amend the proceeding so as to accomplish their purpose by whatever method it might be properly done; for no court, in these days at least, ever holds a party to have abandoned or waived a privilege by any act which is done to assert it, if there be power to permit amendment of the proceeding, of which power there can be no doubt under our statute. Rev. St. Sec. 954.

But, as this motion presents the important and recently much-mooted question as to the proper mode, in our federal equity practice, of taking objection to the service of process, without such a waiver of this privilege as was enforced in Jones v. Andrews, 10 Wall. 327, I have thought it best to look into it, particularly as I find that the practice of the federal courts has not been at all uniform, for reasons that will be apparent on reading the cases, and remembering what is said about the peculiarities of the federal courts, in this matter of taking objections to their jurisdiction, in Rhode Island v. Massachusetts, 12 Pet. 657, 718, which I shall not take space to quote. The jurisdiction of these courts, more than others, is restricted over persons, and to a greater extent formerly than now. Ober v. Gallagher, 93 U.S. 199, 204. Hence an objection which, in the state practice or that of England, to which our equity rule 90 directs us, would be always a mere matter of irregularity, to be corrected on motion, may become, in the federal courts, a formidable consideration of jurisdiction, to which exception may be taken by plea, demurrer, motion to dismiss, or by even mere suggestion, and by the court mero motu, whichever the party pleases to adopt; for there can be no waiver of it under any circumstances. But this distinction is often overlooked, which, coupled with the general tendency of all courts to disregard mere forms, and get at the thing to be done in any convenient way, has very much confused the practice. However, we can have no trouble in any case if we distinguish between a substantive objection to the jurisdiction, technically considered, and one for simple irregularity in the service of the process; because, as was said in Drummond v. Drummond, 2 Ch.App.Cas. 35, 'much confusion has arisen by treating want of power to enforce jurisdiction as tantamount to want of jurisdiction.'

Yet I must say, after a quite careful examination of the English practice, as it existed when our equity rules were adopted and since, that, in my judgment, it was and is competent, even where the denial of power over the person of the defendant goes to the extent of a denial of the jurisdiction of the court itself, to move to discharge the service and vacate the process,-- thereby accomplishing every purpose that would be accomplished by a demurrer or plea to the jurisdiction; and that technically that is the proper way to take the objection in a court of equity wherever the complaint is a want of power over the person, and not over the subject-matter of the suit, which technical feature results from the peculiar nature of pleas in equity as contradistinguished from their uses in pleadings at law; the latter going to the writ, while in equity there is no such thing as a plea to the writ, but only to the bill, or in bar of the relief sought by it. 2 Daniell, Ch. Pr. (1st Ed.) 136. In Foley v. Maillardet, 1 De Gex, J. & S. 389, there was such a motion, supported by affidavit, to show that the service was not within the authority of the act of parliament; precisely as if, under the eighth section of our act of congress of March 3, 1875,-- chapter 137, 18 St. 472; Rev. St. (2d Ed.) Sec. 738,-- a defendant should wish to show that he did not come within the act, and move to vacate the notice or process served upon him. So I do not see why he may not, when served in any case, outside of that section, specially appear to make known his unwillingness to voluntarily submit to the court, as, under some circumstances, he might wish to do, and more to vacate the service; and this, whether his voluntary appearance and willingness to be bound by the court in that case would have given the court jurisdiction to proceed against him or not, that being wholly immaterial to the determination of the motion.

Take this case for illustration. If it appeared by the bill that the plaintiffs and these defendants were all citizens of the same state, the latter might demur for want of jurisdiction or plead, (if necessary to show the fact aliunde the bill,) or the court would, however the fact should obtrude itself into the record, on its own motion, dismiss the bill; and, if the defendants appeared never so formally and generally, the result would be the same,-- the court could not possibly have jurisdiction. But, also, the result would be the same if they should especially appear, and move to discharge the service as irregular, and should join, as they might in such a case, a motion to dismiss the bill; since there is no possible danger in bringing the objection to the attention of the court in any form. But if the fact be that the parties are of diverse citizenship, or the case be one arising under the constitution and laws of the United States, there could be then no question whatever of jurisdiction; for, under our modern acts of congress, the court may acquire jurisdiction by voluntary appearance, and hence a demurrer or plea for want of jurisdiction would be out of place; for non constat but that the defendants may appear thereafter, and at any time, if not on that service, on some other day, voluntarily and without any service at all. Hence it could not be proper to dismiss the bill for want of jurisdiction, but only to decline to proceed against their consent, by vacating the service, which is all the court should properly do. Except, therefore, in that class of cases, peculiar perhaps to the federal courts, where, in certain situations of residence or citizenship, the power to proceed against the particular persons is wholly denied under all circumstances whatever, the objection that the defendants to a bill in equity have not been effectively served with process to bring them within the presence of the court for judgment, is not, as at law, one of jurisdiction to be pleaded by formal plea to the writ, but one of mere irregularity of process, properly cognizable on motion, according to a practice always prevailing, for that especial purpose; and, when the case falls within the exception just mentioned, it is immaterial, perhaps, save as a matter of convenience and permanency of record, how the objection be taken; because, however taken, it must prevail, as it is one that cannot be waived under any circumstances whatever. It is always safe, therefore, to appear specially and move to discharge the process in any case; for, as will be presently seen, if the court has acquired power, by the disputed process, over the person of the objector, to proceed against him, it is a preliminary condition on which he is allowed to make such appearance that, if the objection be decided against him, he shall submit to defend the bill as if duly served with process, and he will not be allowed to depart from the court without a more general appearance after having been permitted to appear specially to make his objections; and, if the service be effective, he must abide by it on that decision, and not challenge it again. But if the court can have no jurisdiction,-- that is to say, no power to acquire, by the legal service of process of any...

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2 cases
  • United States v. American Lumber Co.
    • United States
    • U.S. District Court — Northern District of California
    • April 19, 1897
    ...20 How. 208; Galpin v. Page, 18 Wall. 350; Ober v. Gallagher, 93 U.S. 199; Ex parte Schollenberger, 96 U.S. 369. See, also, Romaine v. Insurance Co., 28 F. 625, and cases there In Pacific R.R. v. Missouri Pac. Ry. Co., supra, it was said: 'There is nothing in any statute of the United State......
  • Jacobs v. Jacobs.
    • United States
    • New Jersey Supreme Court
    • April 24, 1947
    ...that he will file an answer in the cause. Ewald v. Ortynsky, 77 N.J.Eq. 76, 75 A. 577, affirmed 78 N.J.Eq. 527, 79 A. 270; Romaine v. Union Ins. Co., C.C., 28 F. 625. In the case of Allman v. United Brotherhood of Carpenters, 79 N.J.Eq. 150, 81 A. 116, 118, affirmed 79 N.J.Eq. 641, 83 A. 11......

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