O'DONNELL ,. ATCHISON, T. "
B. 1'. B. 00.
O'DONNELL ,. ATCHISON, T. & S. F. R: Co.
8. D. Iowa, O. D. March 8, 1892.)
O. C.lt1sE8-AppB.llUNOB J1ll' BTATE Cot1JtT-EnBOT. An appearance in the state court to file a petition and bond for removal does Dot the right to present in the federal court any question of jUrisdiction which might have been urged in the state court, and concerning which the federal court haa powllr ,to actB..lVB--o,WiJyBR O. DEFECTIVE BERVICB. Where service of notice of commencement of action In the Iowa courts could have been made upon defendant In the district to 1lll every requirement of the state statute", appearance by defendant in the federal court,!dter removal of the cause, is 'Waiver of any defect of service on him. . .
B.um-VBNt1B-DxSCRETION OF COt1JtT·
. Polk Iowa, is In the central division of the circuit court for the BOuthern district of Iowa, while Lee county is in the eastern division. Defendant railroad compaily,lued in the state court lD Polk county, had the right, by the Iowa stat,ute, place of trial transferred to HeZd, that defendant, by procuring the removal of the cause from the state court, and in filing the transcript iil the Cllntral division of this court, was precluded from aaserUng,that the in wrong division, and that It has the right to demand a removal to tliEi eastern diVIsion· The·factthat defendant isa Xansaa corporation, whose railI:oad touohes only Lee l;n Iowa, and that the cause of action did not grow out of nor waa It connected with any oftice or agency within the central division, lanot suftioient to impel to action the discretion of the court to grant a transfer.
At Law. .On petition for change of venue and plea to jurisdiction. Overruled. Cole, Mc,Vey &:- Che8hire, for plaintiff. G. Lath,rup, J. D. M. Hamilt<m, and J. O. Davis, for 9,efendant. WOOLS()N, District Judge. This is an action for personal injUries brought into this court on removal from state court The petition, originally filed in the district court of Polk county, Iowa, states as cause of action that defendant is a Kansas corporation, whose line of operated railway extends through Colorado, Kansas, Iowa, and other states; that in July, 1891, plaintiff's decedent, at Pueblo, Colo., while exercising due care on his part, and while employed by defendant in the operation ofits railway, was killed, by reason of the negligence of the defendant. Service of notice was made on defendant by serving notice upon l'S. M. Osgood, general agent for the state of Iowa of the defendant, Atchison, Topeka, and, Santa Fe Railroad Company, at his office, and the general office of defendant company, in the city of Des Moines, Polk county, Iowa." Upon the first day ofthe term to which the' notice was returnable, defendant filed in said Polk county district court its petition and bond for removal to the federal court, and said court ordered removal accordingly. Upon the day on which the certified pleadings, etc., he.rein were filed in this court, the attorneys for defendant filed herein in this entitled" prlWipe for appearance," the body of which is sa court follows: "The Clerk of said court will please enter oUr appearance for defendant in theabove-erititled action, and docketihe same on proper docket, "-which prtl'AJipe was duly signed by all the attorneys whose v.49F.no.9-44 .
names are given aqove for defendant." 4,t the present term of this court; dMendantfiled its "petition to remove cause to eastern divisioq for and ,also ,filed "plea, to jurisdiction." Briefly stated, petition for change of venue allEiges,' as grounds for removal,that defendantirvaKllnsas cqrporation, wh0811.o,l\lle ,of railway Iowa, but one county, viz., Lee county, \Vhi'Chcounty is in the easter,n division of ,the, district;, 'that Polk county',:ip: which the .suit was brought, is in the central division of the district; that no part of the said '.Vithin. tpe I;lentral division; that the,caUse' of action is shown by petition not to have grown out afnor been connected with any officetn' said celltral d,ivision; that this suit was originally brought in the wrong county oCthe state, and, under, !iltatQtes'of tile. defendant. would ,have beenentiUed, on motion in the state court, to have had theactioii:tfll-Dsferred ,to Lee C01.l,hti'fQF trialr ',," . in' the plea to.' thej\lrisdiction is thll.t:thenoticia ,ofcommencemelltnof suit was serveQ.upon defendant's agent itl"Ptilk b6u'hty',alid' the cause of action is shown by plaintiff's petition neither to have grown out of nor been connectedwith the business of such office:oragency, and no parttflf defendant's line of cou'oty; and therefore, of Iowa, the service of notice, was 'insllfficit 1) t to give' the court jurisdiction of defendant. Plain,.tiff is resisting both plea and petition, and exhibits in full the ren1()*'al proceedings. ' , 1. As to the plea of the jurisdiction. Plaint1ff contends that theservice attacked regularly legally made, under the Iowa statutes; but that, if iri-'eglilar]y made. nevertheless the appearance of defendant in, this actiQn);lQres to the service. C<,>de Iowa, 262B', par. 3, prpvides that im appearance for any purpose connected'with Or insuffiofency of the notice shall he taken in th,e defendant; and that" an appearance, speor object to the substance or service of the notice,shall rllnder ari,y notice unnecessary.» This Code also provides, as one of the statqtory methods in which a defendant may enter his appearance, (paragraph 1,§ 2626,) "by delivering to the clerk a memorandum to the effect tliat'ithe defendant appears, signed either by the defendant iriperson or by ,his at,tQtney, dated the day of its delivery, and to be in the case:" These ,provisions of the Iowa Code have been formally adopted as" ,the rules. of this court.,., The Iowa courts, in. applying these Code proylslons, distinguished between an appearance (1) for purpose of oOjerting. t() the jurisdiotion of the court on the ground that the defendant could not, by service of notice, be brought into the fl.ption, and und'ar the jurisdiction of the court; and 'an appearance (2) tq pbject to the jurisdiction, on the ground that defenda,nt hq,d not; by the service attelnpted, :been brought under such jurisdiction, (whether of alleged defeotin substance of notioe or ,in method or fact of service.)", As to the forwer, the of defendant does not, cure gefect in'jurisdiction. Sp1,LrrWr v. 'lfirtner, 48 Iowa, 486. As to the latter, appearance does cure such defect, 'which relates, not to the
o'nONNE,LL 'V. ATCHISON, T. &; 8. F. B. CO.
pfthe court to obtain the attempted, but to insufficiencyodrregularity in substance or service of notice. The reasoning to be that, as the sole purpose of the notice is to bring the detendant into court, the notice has accomplished its purpose whenever the det'lm4apt comes into court, even though he comes in only to object to the service of the notice as insufficient to compel him to come in. Bank v. Van, 12 Iowa, 523; Van Vark v. Van Dam, 14 Iowa, 233; Ohilds v. Limback, 30 Iowa, 398., While contending that service of notice on the Polk county agent was insufficient to give the court jurisdiction over defendant, defendant con- . ceded that, had the same notice been served upon any of defendant's station agents in Lee county, Iowa, such service would have given this court jurisdiction of defendant, (though in another division of the district than that in, which the case is now pending.) While plaintiff contends that the service was correctly made, but that, if the service was irregular, yet since, by service in Lee county, this court might have obtained undoubted jurisdiction, the appearance of defendant has waived whatever defect ex-' isred in service of notice herein; and plaintiff contends, further, that this is true as to the appearance of defendant in the state court with his petition for removal, and also his appearance in this court by the prledpe filed. As tothefirst point concerning appearance, it may be admitted that there is some disagreement in the holdings of the courts. But the decided current of decision in the federal courts is that an appearance in the statec<:lUrt to file petition and bond for removal does not waive the right to prl;sent in the federal court any question of jurisdiction which might have been urged in the state, court, and concerning which tbe federal court has the power to act. Atchison v. Morris, 11 Fed. Rev. 585; Hendrickson v. Rrlilroad OJ., 22 }t'ed. Rep. 570; Elgin Canning ('0. v. Atchison, T. & S. F. R. OJ., 24 Fed. Rep. 868; Reifsnider v. Publishing 00., 45 Fed. Rep. 433. This first point, therefore, is not well taken. The second point is that the prleCipe for appearance herein is a waiver of.any defect of service on detendant. It should be borne in mind that service I1po.n defendant, which should fill every requirement of the Iowa statute, could have been made in this district. Jurisdiction was possible over defendant. No languag-e could make the appearance of defendant more general than that contained in defendant's prlecipe for appearance; for that language excludes all idea of such appearance being special only. And the conclusion necessarily follows that, in view of the Iowa decisions the prlecipe for appearance herein confers upon this court above full jurisdiction over defendant in this action, even if service of notice . herein should be found insufficient to confer such jurisdiction. 2. As to the motion to change the venue to the eastern division of the district. Had defendant so elected, it is probable that he could, in the state court, have availed himself of the Iowa statute, (section 2589, Code 1873,) and had the venue changed to Lee county. This section provides thRt a defendant, when sued in the wrong county, may, on proper application, have the cause transferred, at costs of plaintiff, to the county.
; FEDERAL REPORTER,
where 1 been sued; but that, if defendcould rightfully ant does not thus apply for and obtain this transfer, the action may rightfully proceed to judgment in the county wherein the suit was brought. The district court of Polk county, with defendant's prrecipe for appearance in this action, might rightfully have proceeded to judgment if defendant did not apply tor transfer to Lee county. This must be co'nceded liS the logical force of the Iowa statute. By filing his application to so transfer, the place of trial might, under the statute, have been changed accordingly. Defendant now contends, since Polk county is in the central division and Lee county is in the eastern division of this district, that this right of transfer, w,hich defendant might have exercis¢d under the state statute in the state court, remains to it in the federal court. But couDsel do not point us either to any rule bfthis court, or any prqvision of federal statute giving this right of transfer as claimed, except section 914, Rev. St., which. in effect, in()orporatesinto the "mode of proceeding" of this court, as it is claimed, this mode of proceeding in the state court. At the ,threshold of this argument, we encounter the insurmountable fact that this court does not deal with county lines as jurisdictional boundaries; but that the divisioDs-of which this smallest .jurisdictional sections. And the district has three-are federal statute creating these divisions contains no provision, with reference tQ removing a cause from one,division to another, analogohs to the state statute above referred to. Defendant, by electing to remove this cause to this court, thereby deprived himself of whatever right he might have exercised, in the state court, of removal under the state statute. Defendant further contends that, as neither plaintiff nor defendant is a resident of the central division of this district, defendant has the right to have the cause transferred to the eastern division, in which, and in which alone, hi ·Iowa, lies defendant's road. The, petition for removal, filed by ul:)fendant in the state court,' expressly asks that this cause may be removed into the circuit court of this district, "central division, at Des Moines." Such, under the statute redistricting the state, (section 9, p. 172, 22 St. U. S.,) must havEl been the effect of an order of removal from the Polk county district court, had not defendant expressly asked such action. While this action was pending in the state court, (if the facts asserted by defendant be conceded to be correctly stated,) defendant might have exercised the right, either (1) to have the place of trial transferred from Polk county to Lee county under the Iowa statute, or (2) to have the action removed from the Polk county district court, to this court in the central division. Defendafit elected to exercise the rightto remove from the state to the federal court; and the act ofdefendant in procuring the removal of the cause from the state court, and in filing the'transcript in the central division, precludes the defendant from now asserting that the case is now pending in the wrong division, and that it has the right to demand a removal to the eastern division. Unless some is presented to move the discretion of the court in a sufficient . different direction, this cause should be sent to trial in the division in which, on demand of defendant, it entered this court. The' facts pre-
FINANCE CO. OF PENNSYLVANIA v. CHARLESTON;
C. &: C.
sented by defendant, as bearing on this point of transfer, are not directed to the discretion of the court, nor are they calculated to impel that dis· . cretion to action. The petition for a change of venue to the eastern division is therefore overruled.. Defendant is ruled to file answer herein within 30 days from the date of filing hereof.
FINANCE Co. OF PENNSYLVANIA et al.
CHARLESTON, C. & C. R. Co.
Ex pam MOORE.
(OLrcutt Court, D. South Carolina. March 11,1892.)
RAILROAD COMPANIES-FoREOLOSURB OJ' MORTGAGB-RECEIVBRS-PRIORlTIB8 01' LIENS.
The order which a court of equity. on appointing a railroad receiver, makes for the payment of wages due employes for a reasonable periQd priort<> the receivership, is merely a personal protection, given ex flTatia to th!>sewho. depend upon their daily labor for support, and will not cover a claim by a merchaut for rations furnished t<> such laborers, under cQntract with the company, and for which compauy alone is liahle, although the company charges the rations t<> its laborers as part of their wages. The claim is entitled t<> payment before the payment of interest on the mortgage bonds, and if any sums applicable thereto have been paid out for sucb interest, or tor permanent improvements whereby the bondholders have been benefited, the claim will be a charge, to the.&mountof the moneys 80 diverted. upon any earnings in the hatl(js of the receiver. or, failinlt these, upon the proceeds of the sale of the road. 48 Fed. Rep. 188, followed.
In Equity. Suit by the Finance Company of Pennsylvania and oth. ers against the Charleston, Cincinnl1ti & Chicago Railroad Company to foreclose a mortgage. Heard on the petition of G. M. Moore, claiming priority of payment for supplies furnished to laborers. For other phases of the litigation, see 45 Fed. Rep. 436, and 48 Fed. Rep. 45, 188. MitcheU<!c Smith and B. A. Hagood, for petitioner. A. T. Smythe, opposed. SIMONTON. District Judge. The petitioner is a merchant at Blacksburg, a town on the line of the Charleston, Cincinnati & Chicago Railroad. In 1890 he entered into a contract with the defendant company to furnish rations to hands employed by it. The company charged these rations to the hands as part of their wages. The items were all charged to the railroad company. The accounts were regularly made out against and presented to the company, audited, and passed. Upon bill filed by the mortgage bondholders, a temporary receiver was appointed on 10th 1890. On 26th February, 1891, the permanent receiver was appointed. In the order appointing the permanent receiver is this provision: "That the receiver pay all wages due to the employes at the date of the order appointing a temporary receiver herein for labor or services, within ninety days before the same." The petitioner presents