WERTHEIN V. CON'rINENTAL RAILWAY & TRUST 00.
The textual provisions of the law on this subject are found in the Code of Practice, art. 107, and Civil Code, art. 2404. A series of decisions by the supreme court of Louisana have comtrued these provisions to mean that where it does not appear that the wife is administering her own property, actions of this sort must be brought by the husband. The mere joinder of the wife has been treated as surplusage. But no case has held that the mere assent of the husband is sufficient. The action must be brought by the 'husband. Holmes v. Holmes, 9 La. 350; Cowand v. Pulley, 9 La. 12; Barton v.' K<1vanaugh, 12 La. Ann. 332; Cooper Cappel, 29 La. Ann. 213. Thi.s would be the law if the marriage had been contraded and the domicile of the parties to the marria.ge '1la4 been within this state. Civil Cod,e, art. 2400, subjects mar,ried persons" to the same provisions of law "as regul/l;te the cqm· munity of aequests and gains between citizens of this' state," so far as relates to "all property acquired in state." It is not necessary to give any technical meanjng to the word "property" as used by the legislature. The object of the legislature, namely, to subject nonresidents who acquire rights within this state to the same rules as those which govern resident is manifest, and leaves no doubt but that the word "property" included not only land and chattels, real and personal, but also all chases in action. The exception must be
GOMPERTZ 'V. CoNTINENTAL RULWAY
(Oircuit Oourt, D. Oonnecticut. May l8, 1882.)
PRACTICE-DILATORY PLEAS-WAIVER OF RIGHT.
Where the rule of practice of the state court, rigidly observed, Is that Cl all pleas in abatement in the superior court must be filed on or before the opening of the court on the day following the return-day of the writ," a failure to file such plea within the time specified is a waiver of his right to take advantage in that court of defective or insufficient service.
SAME-ON REMOVAL OF CAUSE.
Where a defendant in a state court has lost by his inaction t.he, right to object
to the defective service of the complaint, and thereafter removes the (:ause to
the circuit court of the Unitej States, he cannot be permitted in such circuit court to plead in abatement such defedive sel'Vice·
BAME':-'CONDITION 011' CAUSE ,REMOVED.
The case comes into the circuit court on which it was in the state court.
removal, in the same condition in
The failure to file a plea in abatement in the state court is a vo)untflry admIssion that the action was properlv before that court, and defendant should not now be permitted to assert that 'the writ 'had never been served, and that the cause had never been legally before any court.
J. Halsey, for plaintiff. Lewis E. Sta,nton, for defendant. SHIPMAN, D. J. This is a. bill in equity which was made returnable before the superior court for the county of New London, on September 18, 1881. If any service of the bill of complaipt ever was made, it was made on July 29, 1881. Upon the return-day the defendant entered its appearance in the state court, and without pleading or making other suggestion of a. want of jurisdictbn in the court, filed on September 22, 1881, its petition and bond f(jr the removal of the cause to this court at the present term. The petition and bond wete accepted, and upon the' second day of this term the defendant filed in this court a plea.: in abatement .lor non-ser'(Tice of the complaint. One oftha "general rules of practice" of the superior court of this state, and a rule very rigidly observed, is as follows: "All pleas in abatement ill the stlperi6r cotlrtmust be filed on or before the opening of the court, on the day following the returnJday of the writ." By the uniform practice of the state court the defendant had, by its appearance and unexcused omission to file a plea in abatement on the second day of the term, waived any right to take advanor insufficient servi?e. The tage in that court of set down by the plaintiff for ' -The important point in the case is thi,s: Can a defendant who has by inaction lost his right in the state court to object to the defective service of the complaint, and has thereafter removed the eaSEl to the circuit court, be permitted in this court t(j plead in abatement such defective service? . Section 6 of the statutI:! of 1875, in regard to the reni.oval of causes, (1 Supp. Rev. St. 174,) provides "that the eircuit court of the United States shall, in all suits removed under the provision of this act, proceed therein as if the suit had been origin'ally commenced in said circuit court, and the same proceedings had been taken in; such suit in said circuit court as shall have been had therein in said state court prior to ita removal." It cannot now be doubted that the circuit
WERTHEIN V. CONTINENTAL RAILWAY" TRUST 00.
court takes the case where the positive affirmative action of the statecourt has left it. If the state conrt has made an order, and thereafter the case is removed, it goes into the circuit court, with the order, if unexecuted, to be executed, and, if executed, to remain a valid order. Thus, in Duncan v. Gegan, 101 U. S. 810, Chief Justice Waite: says: "The circuit court, when a transfer is effected. takes the case in the condition it was when the state COUI:t was deprived of its jurisdiction. 'fhe circuit court has no more power over what was done before the removal than the state court would have had if the suit had remained there. It takes the case up where the state court left it off." This language had reference toa contlition in which the case had been placed by the positive orders or decrees of the state court, and not to a condition or state in which the case was by reason of the non-action of the removing party. But I think if one of the parties. had, by his non-action within the time prescribed by the state court, prevented himself from asserting a defence or an objection to the jurisdiction of the court, and thereafter in th(l,t court such defence or objection could not be considered as existing, that the circuit court takes the case in the condition in which the non-action of the party leU it. In the present suit the defendant had, by its conduct, declared that it abandoned the defences usually taken advantage of by dilatory pleas, and, so far as the state court was concerned, in the absence of an excuse for non-compliance with the rule, was as effectually prevented from making a defence of non-service as if the court had passed a decree that no dilatory plea would be permitted, and that, for the purposes of the case, good service had been made. The defendant having voluntarily admitted that the action was properly before the state court, an admission which is perpetual while the case is in that court, it is not proper that it should now be permitted to assert that the writ had never been served, and that the cause had never legally been in any court. n such a plea can be permitted in this case it must also be permitted in a case which had remained in the state court three months. or six months, provided no pleadings had been filed and no admissions had been made. It is not in accordance with orderly practice to permit a defendant who had abandoned in the state court by delay all his defences of non-service, non.joinder of parties, and the like, to remove his case into this court and then go through the various dilatory pleas in their order. If no court properly has jurisdiction of the case by reason of non-service of tbe complaint, but the defendant has chosen,.
in accordance with the rules of the court to which the esse is brongbt, to waive the defect and submit himself to the jurisdiction of the court, the defect should be considered as forever waived. In Sa,yles v. Ins. Co. 2 Curt. 212, a care removed from a state court, Mr. Justice Curtis said, obiter, upon a motion to dismiss the cause for want of jurisdiction upon the ground that no service had been made, that the defendant, who had relIloved a case from a state court to the circuit court, had, by his petition for removal and removal, in which proceeding he was the actor, voluntarily treated the suit "as properly commenced and actually pending in the state court, and he cannot, after it has been entered here, treat it otherwise;" and tlw,t after removal upon his petition he cannot be permitted to say, in effect; that there was no suit before the state court. For the decision of the present case it is not necessary to take the ground whioh Judge Curtis was willing to occupy, for it can well be assumed that if the defendant had pleaded in abatement in the state court, and then had forthwith removed the cause, the petition for removal would not have been an abandonment of or inoonsistent with the plea. Inasmuch, however, as the defendant has by inaction lost the opportunity of attacking in the state court the validity of the service of the process, and has thereafter removed the case to this court, I think ths.t it comes in the same condition in whioh it left the state oourt. The plea is overruled.
MORGAN 'V. UNiON PAC.
(Circuit Court,8. D. New York.
REMEDIES-LAW AND EQUITY-LEGAL RIGHTS PROTECTED.
, Where the plaintiff, who held income bonds of the Union Pacific Railway CompanY,eastern division, the coupons of Which were payable out of ',. net earnings" on the first of March and in eltch year, ,brought an equity ,sQit in March, 1880, claiming an account of net earnings by reason of a default, on March 1, 1880, and thereafter brought suit at Jaw to recover coupons' on other bonds of 'the same issue held by hiin, but not included in theequHy suits, for defaults arising September 1, 1880, March 1 and September: I, 1881; and March 1, 1882, heZd, that plaintiff was entitled to an account in the equity suit, not merely for net earnings prior to the commencement of such equity suit to pay the coupons then due, but also ,for all coupons due and net earnings