Rorick v. Chancey

• Decision Date: 22 December 1937
• Citation: 130 Fla. 442,178 So. 112
• Parties: RORICK et al. v. CHANCEY.
• Court: Florida Supreme Court

178 So. 112

130 Fla. 442

RORICK et al. v. CHANCEY.

Florida Supreme Court, Division B.

December 22, 1937

Rehearing Denied Jan. 27, 1938.

Action by C. L. Chancey against H. C. Rorick, a resident of the City of Toledo, State of Ohio, and others. From an order sustaining plaintiff's objection to consideration of defendants' special appearances and motion to quash, the defendants appeal.

Affirmed with directions. Appeal from Circuit Court Broward County; George W. Tedder, judge.

COUNSEL

Alex Baker, Mitchell D. Price, Charles W. Zaring, and Robert S Florence, all of Miami, for appellants.

C. A. Hiaasen and J. T. Chancey, both of Fort Lauderdale, for appellee.

OPINION

CHAPMAN Justice.

The parties will be referred to herein as plaintiff and defendants as they appeared in the court below. On June 10 1935, plaintiff filed his bill of complaint in the circuit court of Broward county, Fla., for an accounting and other relief. Subpoenas in chancery were issued and served upon H. C. Rorick, one of the defendants, and he was served by the sheriff as an individual and as an agent for some of the other defendants. It was asserted below that Mr. Rorick, at the time of the service of the subpoena, was temporarily in Florida as a suitor and witness in a suit pending in the United States District Court of the Southern District of Florida, viz: The Spitzer-Rorick Trust & Savings Bank and H. C. Rorick, as Trustees, v. Everglades Club Company, et al., cause No. 1207-M, Equity, and that his attendance was necessary for the purpose of the disposition of the cause and that he was brought to Florida for no other purpose.

On July 9, 1935, service supra was perfected, and on July 31, 1935, defendants entered a limited appearance in the circuit court of Broward county, Fla., for the sole purpose of presenting a petition for the removal of the cause to the United States District Court for the Southern District of Florida, and the honorable George W. Tedder, judge, made and entered an order granting the petition for removal. On October 25, 1935, the honorable Halstead L. Ritter, judge of the United States District Court for the Southern District of Florida, entered an order granting a motion remanding the cause to the circuit court in and for Broward county, Fla., and immediately following the order the defendants entered special appearance and motions to quash, vacate, and set aside service of summons and the return thereon as made by the sheriff of Dade county, Fla., and in support of said motions to quash submitted several affidavits. An issue was made thereon by counsel for plaintiff by traversing the special appearances and motions to quash. On December 7, 1935, the court below sustained plaintiff's objections to consideration of the special appearances and motions to quash filed by the defendants' motions in the circuit court for removal of the cause to the United States District Court, as a matter of law, were general appearances under the authority of State ex rel. Neel v. Love, 110 Fla. 91, 148 So. 208.

From the order dated December 7, 1935, an appeal was taken and perfected and the cause is here for review on five assignments of error. We do not think it necessary to consider all the assignments for a determination of this cause.

It becomes necessary to determine the weight of authority where an appearance is made in a state court for the purpose of presenting a petition for removal of the cause to a federal court, and an appearance before the federal court in opposition to a motion to remand the cause to the state court, as a matter of law under the statutes and decisions of Florida, is a general appearance. In 3 American Jurisprudence, § 29, pp. 800, 801, it is said:

'29. Petition for Removal to Federal Courts.--It is now well settled, both in the Federal courts and in most of the state courts which have considered the point, that an appearance in a state court merely for the purpose of presenting an application for removal to a Federal court does not constitute a general appearance. The rule is particularly applicable where language is used specially limiting the character of the appearance or expressly reserving the right to object to the state court's jurisdiction. The fact, however, that the removal petition is in general terms, without specifying and restricting the purpose of the defendant's appearance in the state court, does not prevent his appearance therein from being a special appearance only.'

This subject was considered in 6 Corpus Juris Secundum, Appearances, pp. 38, 39, when it was said:

'Although there is some authority otherwise, in the federal and most state courts a petition for removal of a cause to the federal court and the proceedings thereon do not constitute an appearance which waives jurisdictional objections or prevents defendant from being in default for want of appearance.

'While there are some earlier federal cases in discord, and a number of state courts are to the contrary, it is now the settled rule in the federal courts, and in many state courts, some of which have receded from their former position and have followed the rule primarily because of the view that the decision of the United States Supreme Court is binding on this question, that the filing of, or joinder in, a petition for the removal of a cause from a state to a federal court, and the proceedings thereon, do not amount to a general appearance in the cause, which thereafter precludes defendant from objecting to the jurisdiction of the court over his person. Under this rule, a petition for removal is only a special appearance whether it is so designated or not, although it is even more clearly so, where the petition for removal recites that the appearance is made only for the purpose of presenting the petition. Where this latter view is taken, a motion for leave to withdraw a petition for removal is not a general appearance, nor is the amendment of the petition with leave of the state court, or defendant's appearance and consent to the allowance of a motion to remand.

'Even in states where the right to appear specially has been taken away by statute, and no such thing as a special appearance is recognized, it has been held that by a petition for the removal of the cause to the federal court defendant has not appeared at all in the legal sense and thereby in no way submits himself to the jurisdiction of the court, unless defendant goes further, as by applying for and obtaining time to plead, in which case he will be held to have appeared.

'In jurisdictions where the petition for removal is regarded as a general appearance, if the cause is remanded as having been improperly removed, or the petition for removal is denied because filed too late, defendant is in the state court for all purposes and cannot object to its jurisdiction. On the other hand, in states where the petition for removal is not regarded as an appearance in the state court it in no way operates to extend the time to appear and plead therein, and, if the cause is subsequently remanded, defendant may find himself in default for want of appearance or answer.'

The courts of the state of New York had a similar set of facts before it as the case at bar, and in the suit of Farmer v. National Life Association, 138 N.Y. 265, 33 N.E. 1075, where it was said:

'It is unnecessary to consider what force, if any, the objections to the mode of service of process in this case, and to the sufficiency of the admission of service, might have had if they had been seasonably made; for we think it must be held that the defendant necessarily submitted itself to the jurisdiction of the state court, and waived any defect there may have been in the procedure to acquire jurisdiction of its person, by the proceeding which it initiated and consummated for the removal of the action into the United States circuit court. There could be no transfer of the cause from the state to the federal jurisdiction, unless there was an action pending. The federal statute required it, and the petition must so allege, and must also aver that the petitioner is a party to the action. The legal consequences of this acknowledgment of, and submission to, the jurisdiction of the state court, cannot be avoided by the declaration which the defendant's attorney made while engaged in the act,--that his appearance was special, and only for the purpose of effecting the removal of the cause into the federal court. There are undoubtedly cases where the right of a defendant to move to vacate service of process upon him may be saved by a special or qualified appearance for the purpose of making some motion or taking some step in the action which does not amount to a recognition of the jurisdiction of the court of his person; but the rule adopted in such cases has no application where the defendant becomes an actor in the suit, and institutes a proceeding which has for its basis the existence of an action to which he must be a party. He thereby submits himself to the jurisdiction of the court, and no disclaimer which he may make upon the record, that he does not intend to do so, will be effectual to defeat the consequences of his act. As was held in Ballard v. Burrowes, 2 Rob. [25 N.Y.Super.Ct.] 206, under such circumstances the limitation which he attempts to place upon the effect of his conduct is void, because incompatible with the purpose of his act.

'We are aware that there are many cases in the federal circuit court which hold that after the removal the defendant may move to dismiss the action because of defective service of process in the state court, and that his appearance there for the purpose of taking the necessary proceedings to remove the action is not a waiver of his right to make the...