inexpedient at this time to do more than to give to the of the Florida Railway & Navigation Company some, general instructions in respect to such of his business with the parties to this petition as falls under the head of interstate commerce. (1) All charges made for any service in the transportation of passengers or property, or for receiving, delivering, storing, or handling property, must be reasonable and just. (2) He will not discriminate, in his rates, charges, and facilities, for or against the Clyde line or the Mallory line, but will give to both equal rates and facilities for trade and travel, for equal service, from all points.
and others'll. CANADA.
(Oirouit Oourt, D. Kan8a8. April 26, 1887.)
An attachment in a United States circuit court, ina case where no service was made on defendant. and defendant could not be found in the district, is void. under Rev. St. U. S. § 739, which exempts a party from suit in the United States courts, except in the district in which he is an inhabitc.nt, or may be served with process.
A subsequent appearance of the defend,ant in the case does not waive the invalidity of the attachment procJedings.
SAME-ATTACK BY THIRD PARTms.
A third party, claiming to own the goods attached, is entitled to set aside the attachment, the defect being jurisdictional.
Jame8 & John8on and John Martin, for plaintiffs. Overmeyer & Safford, for Miner & Sowers.
FOSTER, J. This proceeding was commenced by the plaintiffs against defendant, Enos Canada, on December 1, 1886, to recover on account of goods sold and delivered to defendant. The petition alleges that the plaintiffp. are citizens of the state of Missouri, and that defendant is an alien and a resident of Canada. At the time of filing the petition, the plaintiffs swore out a warrant of attachment and garnishment against the goods and property of the defendant. It appears from the marshal's return on the summons that the defendant was not found in this district, and no service of the writ was made. But, in pursuance of the command of the writ of attachment, the marshal did attach and take into his possession a lot of goods pointed out by plaintiffs' agent as the property of defendant; saict goods then being in the possession of Miner &Sowers, who claimed to own the same, and did also serve said Miner & Sowers with process of garnishment. The garnishees appeared, and moved to discharge the garnishment, and set aside the attachment, on the grounds that they were illegal and void. Pending this motion, and on the twenty-eighth day of March, 1887, at the procurement of plaintiffs, Canada entered a voluntary ap-
pearance to the suit, and filed a general denial to the plaintiffs' petition. Under section 739 ofthe Revised Statutes a party is exemptfrom a civil suit in tbeUnited States courts, except in the district in which he is an inhabitant, or may be served with process. It is tberefore apparent that this court acquired no jurisdiction over the person or property of the fendant until he entered his appearance. This doctrine has been so often decided that plaintiffs' counsel do'not controvert it., See Toland v. Sprague, 12 Pet. 327; Ex parte Railway Co., 103 U. S. 794; !l(',Z'fO v. Oragin, 3 Dill. 474; :Fields,Fed. Courts, 177,182. Nor is it questioned but Miner & Sowers, having been brought before the court on a writ of garnishment, and· claiming title to the attached property, have the right to make their objections to the legality ofthe attachment proceedings. It is urged, however, by counsel, for plaintiffs, that the appearance of the defendant, and answering the complaint, operates as a waiver, and cures the objections to the attachment proceedings, not only as to himself. but also as to Miner & Sowers. I do not think so. In the first place, it does not appear that Canada has waived or lost his right tornake this objection at any time before judgment. The Code of Procedure of Kansas expressly saves to him that right. Section 228, Code. Undoubtedly, his voluntary appearance to the suit gives the court jurisdiction to proceed to judgment; but that does not necessarily cure the illegality of the attachment proceedings, if timely objection is made. In the second place, if the defendant had waived or lost any rights to object to the proceedings for himself by entering bis appearance, I cannot believe he has waived, or can waive, any jurisdictional objection which affects the rights of Miner & Sowers, either by compelling them to appear and make disclosure under' the writ of garnishment, or to assert their title or possession to the property. In Toland v. Sprague, supra" the court held that an appearance and plea to the merits by the defendant makes a Vl\lid judgment against him, but in that case the defendant made objection to the attachment proceedings, and the court clearly recognizes his right to do so, but refused to consider that question, because the appellant had not properly presented . it in his record. Page 331. In Robinson v. National Stock-Yard Co., 12 Fed. Rep. 361, the court held that, after voluntary appearance by defendant, he could not object to the jurisdiction; but it was not held that he might not object to the legality of the attachment. In Ex parte Railway Co., 8upra, the plea to the jurisdiction was sustained. In Dicken80n v. Cowley, 15 Kan. 273, the court held that parties claiming an interest in the attached property could not avail themselves of all and every irregularity and error of which the principal defendant complain, but they could object to such proceedings as were fatal to the process and the jurisdiction; and on their motion the attachment was dismissed for want of a proper affidavit. The other questions argued by counsel need not be passed ou, as this disposes of the case, and the attachment must be set aside.
BLAIN 'V. HOME INS. 00.
BLAIN 'V. HOME INS. CO. OF NEW
«(Jircuit (Jourt, S. D. Georgia" E. D. January 29. 1887.)
CosTs-TAXATION-JURIsDICTION-ENTRIEB OF RECORD.
Where the court has acted upon the pleadings in a cause pending, by inter· locutory order or final judgment, or where its officers have performed servo ices, the validity of which depends upon its jurisdiction, everything necessary to show jurisdiction and the regularity of the proceedings should be entered upon the tinal record.
Where a common-law action. commenced in a state court, and removed into this court, is referred to an auditor, and:pending the hearing before the latter, the parties agree upon a settlement, with the sanction of the court, and enter upon the minutes, "Dismissed, at defendant's costs, by consent," the process and pleadings in the state court, together with the proceedings for removal sent up in the transcript, and the proceedings in thIs court, should be entered upon the final record: and the charge of the clerk of 15 cents per folio for the record is legal and proper. (Syllabus by the (Jourt.)
SAME-DISMISSAL BY CONSENT-REMOVAL all' CAUSEB.
Action on Insurance Policy removed from state court. retax .costs. Harry Jackaon, for the motion. The Olerk, in prapria persona, contra.
On motion to
SPEER, J. This is an informal motion to retax costs. The record discloses the following state of facts: The plaintiff instituted his action in the state court on a policy of insurauce. The cause was removed to this court, by the defendant, under the act of March 3,1875. The case was assigned for trial at the present term of the but it appearing, at the threshold of the trial, that it involved the adjustment of complicated accounts, the cause was referred to an auditor. Pending the hearing before the auditor, the parties agreed upon a settlement, in pursuance of which their attorneys caused the following order to be entered of record: "Dismissed, at defendant's costs, by consent." The costs were taxed by the clerk. Counsel for defendant now objects to the following item in the bill, viz.: "For making final record, 64 folios, @ 15 cents $9.60,"-on the grounds (1) that the cause was settled between the parties without a formal trial, and that it is unnecessary to make a record of the proceedings; (2) that even if a portion of the proceedings are to be recorded, that such formal parts as the petition, bond, and order for removal ought to be omitted, as unnecessarily incumbering the record. It was admitted that the number of folios in the record was correctly counted. I am of the opinion that the objection is not tenable. The circuit court of the United States is a court of record,-a court to which a writ of error lies. Mr. Justice BLACKSTONE defines a court of record to be "a court where the acts and proceedings are enrolled in parchment, for a perpetuaLmemorial and testimony." The importance of preserving the proceedings of 11 court in any particular case may not be apparent at the time of its determination, especially to the party hav-