·INS fl. HENDRYX.
C04n'tmtt OO'Ulrt, D. Massachusetts. December 20, 1889.}
FEDERAL COURTS-JURISDICTION-NON-RESIDENTS-SERVICE OJ!' PROCESS.
A federal court does not acquire jurisdiction of a suit removed from a state court by virtue of an attachment made in the state court, where. there was no personal service of process on defendant, a resident of another state.
SAME-WAIVER OJ!' OBJECTION-REMOVAL OJ!' CAUSE.
Defendant does not, by appearing in the state court for the. purpose of removing the case to the federal court, thereby waive any irregularity 88 to service ot process.
Plaintiff, pro 86. JohnL. 8. Roberta and James E. Leach, for defendants.
CoLT,J, This suit wp.s originaUy brought in the state court, and was removed by the defendants to this court. The defendants are residents of the state of Connecticut, and no personal service was made upon them, but at the time the original writ was issued the property of the defendants in the hands of certain residents of Boston was attached. The defendants now move to dismiss the suit for want of juri!3diction. Thefirst question which arises is whether this court acquired jurisdiction by virtue of the attachment made in the state court. This question must be answered in the negative, because the law is settled that the United States courts have no jurisdiction in suits founded on fordgn attachment, and without personal service of process. Toland v. Sprague, 12 PeL 300; v. Darden, 2 Woods, 437; Sadlier v. Fallon, 2 -Curt. 57!). The sec<md question which arises is whether the act of the defendants in appearing in the state court for the purpose of removing the case to this court constitutes a waiver of any irregularity as to service of proceSs. This identical question haS been several times before the federal courts for adjudication; and, so far as I have been able to examine the cases, it has been uniformly beld that an appearance in the state court for the purposes Qfremoval is not such a general appearance as to give the federal court jurisdiction. Hendrickson v. Railway 00., Fed. Rep. 569; SmaU v. Montgomery, 17 Fed. Rep. 865; Atchison v. Morris, 11 Fed. Rep. 582. In thl;llast case, Judge DRUMMOND says: "In fact, it may have been, among other reasons, for the very purpose of .objecting to the service of summons, the defendant requested that the cause should be removed to the federal court. because, in a proper case, a party has the right to the opinion of the federal court on every question that may arise" in the case, not only in relatieln to the pleadings and merits, but to the service of process; and it would be contrary to the manifest intent of the act of congress to hold that a ·party who has a right to remove a cause is foreclosed as to any question which the federal court can be called upon, under the law. to decide; and I have no doubt this is such a question," v.40F.no.12-42
On Motion to Dismiss for Want of Jurisdiction.
I see no reason to doubt the soundness of the conclusion reached by the courts in the aboV!e Cases on this ,question, and it follows that the suit must be dismissed. As the court has no jurisdiction, the defendcosts. Suit dismissed, without costs. ants cannot
HENNING.,. WESTERN' UNION TEL.
lCircuit Oowrt, D. South. OaroUna.
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The rules of praotice of a United States oircuit court govern a oause broughtthere from a state 00.u.rt, under 25 St. at Large, 435, providing that ,"the cause IIhall then . slIJII,e . , prooeed in the . ' manner 88 if it had been originally commllnoed in lIaid.oirouit .
; Wllere a oause 111 removed from a state to·" United States circuit court, and the pIah1tftr amends hill complaint, he puts himself within a rule of practice of the oir. oUit·oourt; allowing a defendant, ,. in all oases, t' to demand security for costs before though the dem"ud oouldnllt h"ve been made in the state coun whBf8 the aotion was . ,
SAME-SEOURITY FOR COSTB.
At On motionfol' security fOI'costs. Buist &: Buist and JoM Wingate, for plaintiff. Ba,rker, Gilliland «Jilitiaimnns, for defendant.
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plaintifhhall have givenllOOur4ty for costs, if notice be giiven to the plaintiff's attorney that such security, will be required. The amount of s1:lchsecurity, . not tlfty dollal's; 'shall be fixed by the clerk. made , to:a )l1dge:ona rules-dar, orto the court in term. such furthersecurltymay be · ordered IrS may be deemed n006SSa1'Y:." '1 . j,'7'be'rule is nocase." b i,t Ilffectedhy the
'SmO:NTON, J. This'ca.se was originally brought in the state court. ·It wlis removed into,'. this court, plaintjff' being a resident of the state of 'Sotith',parolina, !lnd'the 'defendant' a After its removal the plaintitr obtained leave to' amend his complaint by insert·ing. th.e appointment apd name of his guardian(td litem,and. de'fendant had leave to answer the complaint when so'amended. Therelipondefendant,1 under Qursaventy-fifth rule, servedttotlcEdor security this motion, because he is tttesident of 'for cOsts. The plaintiff the state of South Carolina,and as such not liable to security for costs in the state court, and therefore not so liable in this court, into wblch the Cal3ecomes precisely In the same plightirr which it left. the state . ' court; . DUncan v.. 101. U. S. '812. . This It new ques,tion;' It must bG decidea '\lnder our own rule, which controls our prae'tice. 'Rule75 is in these words: ', ' "In no case shall the be compelled to plead or answer until the
.f.aqt.tqat before, the case ,came into court the plaintiff was underI\o obligation whatever'to give ;security for ,GOsts? The actoi congress regulating the removal of causes provides ihat, when removed', "the cause