Tallman v. Baltimore & O.R. Co.

• Decision Date: 21 February 1891
• Citation: 45 F. 156
• Court: U.S. District Court — Southern District of Ohio
• Parties: TALLMAN v. BALTIMORE & O.R. CO. AULT v. SAME.

45 F. 156

TALLMAN v. BALTIMORE & O.R. CO.

AULT v. SAME.

United States Circuit Court, S.D. Ohio, Eastern Division.

February 21, 1891

L Danford, J. W. Shannon, and James C. Tallman, for plaintiffs.

J. H Collins, for defendant.

SAGE J.

These cases were removed from the court of common pleas of Belmont county, Ohio, by the defendant. The service in each case, as shown by the transcript, was by delivering to C. W. Stralls 'ticket agent and general agent of the within named, the B. & O.R.R. Co., not found in my county. ' The defendant now comes, and, 'entering its appearance for the purpose of this motion, and for no other purpose whatsoever,' moves the court to quash the summons and service, for the reason that it is not a sufficient or legal service.

Counsel for plaintiff in each case insists that due and legal service was in fact made, and moves that the sheriff of Belmont county be allowed to amend his return so as to make it correspond with the facts, and that the clerk of the court of common pleas of Belmont county be authorized to certify such amended return to the clerk of this court, and for all other proper orders. The plaintiff's motion must be overruled.

The jurisdiction of the state court over these cases was terminated by the filing of the petition for removal, and this court can issue no order to, nor confer any authority upon, any officer of that court with reference to any proceeding in this case.

The law of Ohio providing for service of summons upon a corporation (section 5044, Rev. St. Ohio) enacts that--

'If the corporation is a railroad company, whether foreign or created under the laws of this state, and whether the charter thereof prescribes the manner and place, or either, of service of process thereon, the summons may be served upon any regular ticket or freight agent thereof; or, if there is no such agent, then upon any conductor, in any county in the state in which such road is located, and through which it passes.'

The service is defective in that it does not show that Stralls, upon whom it was made, was a regular ticket agent of the defendant. It is true that the return does not show that the service was made in Belmont county, but, the court of common pleas being a court of general jurisdiction, it will be presumed that the service was made in the proper county, for the reason that a court of general jurisdiction will always be presumed to have jurisdiction of the cause and the parties until the contrary appears. Knowles v. Gas-Light & Coke Co., 19 Wall. 61.

But is the defendant entitled to make the objection? Counsel cite Hendrickson v. Railroad Co., 22 F. 569, and Kauffman v. Kennedy, 25 F. 785, in support of the proposition that the filing of the petition and bond for removal did not amount to an appearance in the case, and unless accompanied by a general appearance, does not prevent a motion in the federal court to set aside the service of process and dismiss the suit for want of jurisdiction over the defendant. In Hendrickson v. Railroad Co. service was obtained in the state court by a writ of attachment, but there was a failure on the part of the plaintiff to make proper affidavits to obtain an order legally for service of process by publication. The suits were in the county of Hennepin, in the state of Minnesota, and were brought to recover damages for personal injuries which were inflicted in the state of Missouri. The defendant corporation had no place of business in Minnesota, and transacted no business therein. A motion was filed in the state court to dismiss for want of jurisdiction, and immediately thereafter petitions were filed and bonds given to remove the cases to this court. There are three cases included in the one report. The motion to dismiss for want of jurisdiction was renewed in the United States court. The court held that the appearance of the defendant in the state court for the purpose of removal was not a general appearance, so as to give the court jurisdiction of the party, nor was it a waiver of all irregularities; and, sustaining the objection to the jurisdiction, dismissed the cases. The ruling was undoubtedly correct, because, prior to the filing of the petition for removal, the objection to the jurisdiction was made in the state court, and the provision in the removal act that, upon the filing in the federal court of a copy of the record in the cause removed, it shall then proceed in the same manner as if it had been originally commenced in the circuit court, preserves the objection made in the state court, and brings it before the federal court for consideration. The jurisdiction of the circuit court is in no sense appellate, and questions passed upon in the state court cannot be reviewed, but...