MORRIS V. GRAHAM.
the judgment was obtained; but that defense is not raised by the auswer, and quite possibly could not be made. In my opinion, the complainant is entitled to a decree against the Baltimore & Ohio Railroad Company for the amount of its judgment.
March 21, 1892.)
(O£rcuit CoUrt, S. D. Fl·orida.
SERVICE OF 8UMMONS-WAIVER-ApPEARANCE-REMOVAL OJ!' CAUSE.
Where defendants euter a special appearance in the state court tor the purpose of contesting the validity of service, and sUbsequently remove the cause to a federal court, such removal, even though it should be considered as equivalent to a general appearance, does not preclude the court from examining the legality of the. original service; for, while a general appearance is a waiver of mere irregularities of service, the court may at any time dismiss the caae for auy illegality rendering the service void. A bill to remove cloud from title to real estate lying in a state is not au action in personam, to which personal service is necessary, and the state has authority to provide for service upon nonresidents by publication.
SAME-REPEAL OF STATUTES.
Act Fla. 1881, providing for personal service upon residents of the state not resIdin!! in the county where the suit was brought, repealed by implication the act of 1828, which authorized service upon such persons by publication. Act Fla. 1885, providing for service by publication for four weeks upon nonresi. dents of the state, persons whose residence is unknown, and persons who are absent from the state, or who conceal themselves so that service cannot be had, applies to all persons not reached by the act of 1881, and repeals by implication the act of 1828 as to all such persons. As this act is therefore the only one in force relating to service by publication, and as it requires publicatian for the same period both as to citizens of Florida and citizens of other states, there is no ground for the contention that it is unconstitutional, as denying tocitizen8 of other states the same priVileges and immuniti allowed to ls citizens of Florida.
SAME-CONSTITUTIONAL LAW-NONRESIDENTS-EQUAL PRIVILEGES.
In Equity. Bill by George W. Morris against Graham & Hubbel and ·others to remove cloud from title. The cause was commenced ill a state court, and subsequently removed to this court. '1'. M. Shackleford, for complainant. Arthur F. Odlin, for respondents.
LOCKE, District Judge. Defendants herein entered a special appearance in the state court for the purpose of contesting the validity of service, and before the question was decided removed the cause to this .court, leaving that question still pending. It is now strongly urged by complainant that the removal of the case into the United States court was equivalent to a general appearance, and waived any right of objection to the insufficiency of service or summons; citing and relying upon ,Sayles v. Inmrance Co., 2 Curt. 212; Tallman v. Railroad Co" 45 Fed. Rep. 156;' Bushnell v. Kennedy, 9 Wall. 387,393; Sweeny v. Coffin, 1 Dill. '13, 75; Edwarda v. Insuru,nce Co., 20 Fed. Rep. 452; and Water Co. v.
,323. In to this view, it is urged that. a state to a federa,l qqurt, with a motion to difil.mise pendappearance. amount to a general and precludes the court from back of suqh removal, a.np. ,examming into the validity of the service; citing Atchison v. Morris, 11 Fed. Rep. 582; Miner v. Markham, 28 Fed. Rep. 387; Clew8 v. Iron Co., 44 Fed. Rep. 31; and POl'rest v. Railroad Co., 47 Fed. Rep. 1. Also referring to Parrott v. In8urance Co., 5 Fed. Rep. 391; Snw.ll v. Montgomery, 17 Fed. Rep. 865; Freidlander v. Pollock, 5 Cold. 490; Perkin8 v. Hendryx, 40 Fed. Rep.' 657; Hendrick8Dn v. Railway Co., 22 Fed. Rep. 569; Hftrkne88 v. H.'lJde,.98 U. S. The general principle that a litigant is estopped from questioning the jurisdiction of the forum which he has himselfselected and chosen, although the court may dismiss the ca.usefQl' 'lack of jurisdiction, meets us at the outset. If there is an exception,to this, it must be based upon some other principle of law sufficielltl.y strong to prestllnption of jurisdiction, as far as the rights oC the litigant who selected the court are concerned. While the delendant may very be estopped from denying the jurisdiction of the c9\lrt which he has voluntarily selected, on account of technical grounds or irregularity orinaufficienc'y of service, which has been practically cured by his appearance, the couit is not estopped from in4uiring into its jurisdiction based upon service, facts of parties, values, or any other matters which are ,xnaterial. 'There is an important distinction between mere irregularities and f:1uch defects as reIltl'er a service a nullity. Although a.nirregularity may be waivell, a.n illegality of service or an essential deject may be taken advantage of at any susequent stage of the action, whether the appearance has been special or general. "An appearance does not preclude a party from moving to dismiss for the want of jurisdiction or any other sufficient ground, except for want of notice in the record." Chrrol Dor8ey, 20 How. 204. In Lamer v. Dana, 10 Blatchf. 34, it was held that the removal places the case in the same position here as if so originally brought; and I think, it may well be notic;e of the penuency of the suit; but all other added, defenses, eJ!',cept insufficieJ:lcy of notice through service. may be made, whether the removal is considered to be a general appearance or made under a special one. In Sayles v. Ifl8urrtnce Co., 2 Curt. 212, Mr. Justice CURTIS Aaid that the defendant who had removed a case from the state court to the circuit court by his petition for removal, in which proceeding he wail ador, voluntarily treated the suit as properly commenced and pending in the state conrt, and he cannot, entered .here, treat it otherwise; and that, after removal after it has upon his petition, heqal1lPot, be permitted to say, in effect, that there Iq Bushnell v. Kennedy, 9 Wall. 387, was no suitbetqN the language of Ohief J \lsUce CHASE. is to same effect. It is true that· the decision of tpis qU,llSUOllWas not necessary to the determination of either of the casesunrte!,.consideration. a.nd was therefore, to aeertain extent obiter; but oftheviewR of such eminent jurists, stated in such caunotbe vassed lightly by.
MORRlS '1>. GRAHAM.
Let us examine the principles involved in the' (lases cited by the defendant inwhich there appear to be conclusions conflicting with these views. In Parrott v. Insurance Co·· 5 Fed. Rep. 3911itdoes not appear that it was an action in rem,. but was a suit seeking a judgment in personam against a nonresident corporation. There appears nothing to give the court jurisdiction outside of the alleged service. which was made beyond the jurisdiction of the state, and which was declared bad, and the case dismissed. This decision appears to have been based upon Pennoyer v. Neff, 95 U. S. 715, which admitted, however, that service by publication might be su(ficieht in all actions which were substantially proin rem. In this case no publication was made or attempted. In Atchisan v. Morris, 11 Fed. Rep. 582. which was also an action in persanam, with nothing except the personal service to give jurisdiction, and this made while defendant, who was a nonresident, was attending a trial in the circuit court as a witness under a subpcena, the court held that service made undersuch circumstances was void, the party being privileged, and that the court had no jurisdiction. In this case no special appearance had been entered, but Judge DRUMMOND held thatthecourt had a right to go back of the petition, and determine its jurisdiction, through the nature of the service. In Small v.MantgO'rnery, 17 Fed. Rep. 865, the same principle was laid down. This was strictly a personal action, with nothing to support the jurisdiction of the court except the service, which the court held illegal, because made when the party was within the state to answer to a criminal charge. In Miner v. Markham, 28 Fed. Rep. 387, the principle is precisely the same. The personal service was the only foundation for jurisdiction, and this was made upon a member of congress while on his way to the seat of government, and plainly illegal. In Reifsniderv. Publishing Co., 45 Fed. Rep. 433, the service was made upon the president of a foreign corporation, incidentally within the state 'On private business. The corporation was never within the state, nor was there anything to give jurisdiction but this illegal summons, and so it was held. The same question arose in':Clewsv. Iran Co., 44 I!'ed. Rep. "31. The defendant corporation was not engaged in business within the state,norfound there, nor were there any other grounds of jurisdiction ·except the incidental presence of the president. In Perkins v. Hendryx, 40 Fed. Rep. 657, there was no personal service, nor does it appear that there was any notice by publication,-onJy attachment. without per'Sonal notice; and this was held insufficient to gi ve the court j urisdictiol1. I'll Hendri.cksan v. Railroad Co., 22 Fed. Rep. 569, the action was for personal damages against the corporation, which had no place of business nor transacted any business in the state in which the suit was brought. There was nothing in the character of the Case that claimed to give jurisdiction.except an attempted attachment of a debt due and a service made by publication. In Kauffman v. Kennedy,25 Fed. Rep. 785. service was had upon defendant while a· witness temporarily within the state in atteridance upon court, under subpcena.. This alone was claimed to give jurisdiction, but the court held that he was protected under "Such circumstances, and· that such service was illegal and void. In
FEDERAL REPOR'fER, vol. 51..
IIp.rknesa v. Hyde, 98 U. S. 476, the only decision. of the supreme court Whi(lh has been cited in support of the position of the defendant, there wasn,o question of removal, and the only question was of the legality or the illegality of the service made by the sheriff of the territory of Idaho upon defendant at his residence within an Indian reservation, which was held to be illegal and void. In none of these cases was there anything aside from the service culculated to give jurisdiction. and when that was declared to be void the jurisdiction failed. In Dormitzer v. Bridge Co., 6 Fed. Rep. 217, J udgeLowELL speaks of a lien or title existing prior by the institution of it, and notes it as a to the suit, and not point.of distinction incases in which the United States may obtain jurisdiction without personal service. In this distinction I consider may hefound the solution of the questiQn whether a removal from the state faperal court waives all irregnlarities or insufficiencies of service. to If there was no lien or title upon which the jurisdiction could be based, asiqe from the serviqe of process, then the illegality of such a service dismi;sses.thesuit, and no consent of parties, even, or waiver by appearancedlither special or general, can support the jurisdiction. Looking bacltof shadowy distinction between a special and a generalllppearance, ,aseIJlpodied in ,a. petition for removal, I consider the substance up<;>n which jurisdiction is based may be in any case inquired into, and such inquiry does not nllcessarily depend upon a special or general apth;e facts of service in each ca1'le. pearance, It is claipled by the defendant herein that a suit to remove cloud from is an action in personam; and Hart v. Sansom, 110 U. title to Ct. Rep. 586, is cited and relied upon; but in the light S. 151, of Arndt v.JJriggs, 134 U. S. 316,10 Sup. Ct. Rep. 557, such view cannot be accepted. The opinion in this case plainly contradicts any such conclusion, and .declares that "the various decisions of this court establish that in its judgment state has power by statute to provide for the adjudication gftitles to real estate within its limits, as against nonresidents wh() are prought into co;urt only by publication." The generalpl'inciple of equity gives to the courts of this state powers to investigate questions of cloud of title, with power to quiet the title to lands inv<;>lved, and to remove therefrom alleged liens, and nO special statute was required for that purpose. Holland v. Ohallen, 110 U. S. 15, 3 Sup. Ct. Rep. 495. The state has by statute authorized and provided for publication and service to carry into effect the rights before existing in a court of c1)ancery. The legislatjPn of congress has recognized the principle of local jurisdictiollin qqestions touching title to real estate and the right of service by,publicatiooL Section 738" Rev. St.; section 8, Act March 3, 1875, 472.) This: is plainly one of the cases where the juris(volume 18, court did not depend solely upon the service or the instidiction of tution of ;the:s'uit, and in such case I think the court might well conthe petition for removal could be considered a waiver of any insufficiency of notice which would not render it or void. But let us examine what was the character of the service which is
complained of. and determine whether or not it is sufficient to support jurisdiction, for the court is never estopped, by consent of parties even, from examining every question of the case upon which it is claimed jurisdiction rests. It is urged by defendant that the act under which the publication in this case was made, that of 1885, is unconstitutional, inasmuch as it does not grant immunities and privileges to citizens of states other than Florida equal to those of citizens of Florida, as it requires but four weeks' publication to nonresidents. when the act of 1828 required two months' notice to residents of Florida not residing within the circuit in which the suit was brought. The first act of the legislature of the state of Florida touching service by publication was that of 1828. It provided that, where it should be made to appear to the judge by affidavit that any defendant resided out of the circuit of the state in which the bill was filed, an order requiring such defendant to appear and answer should be published in some newspaper printed in the circuit, for the time therein specified ,-if the defendant resided within the state, but not the circuit, two months; if in any other part of the United States, four months, etc. This provided for service by publication on all not residing in the circuit, residents or nonresidents of the slate, and they were required to answer, not plead or deIllur. This was the law until the act of Febuary 16, 1881, in which it was provided that if any of the defendants resided within the state of Florida, in any county other than that in which suit was brought, subprena might be served by the sheriff of the county in which the defendant resided or might be found. This left the service by publication against all others as it stood by the act of 1828, and it is considered repealed by implication that act as far as it related to those resident within the state, but not within the county, where the suit was brought. It has been argued that thi!! is not the necessary construction, and that the act of 1828 is still in force as to the residents of the state, but not of the circuit; but I do not consider that, where the legislature has provided a manner of personal service within its jurisdiction upon its own citizens, any court would be justified in accepting or ordering service by publication. Service upon nonresidents had not then been provided for otherwise than by the act of 1828. The act of 1885 provided for service upon all those who could not be reached under the act of 1881, viz., nonresidents, those whose residence was unknown, or those who had been absent from the state, or who concealed themselves so that service could not be had upon them. This includes, I consider, all classes not reached by the act of 1881, and repeals by implication the act of 1828 as to all such. The manner of the service is declared to be in two ways,-all, that being within the state, can be reached by personal service, must be so served; all others-nonresidents, those whose residence is unknown, and those who conceal themselves-can be served by publication. It is beyond the power of a slate to grant the same privileges and immunities in the matter of service of process to those outside of its jurisdiction as it can to those within its limits; its powers
", All resi;4euts, or those found within itswho cannot be so reached beseryed by publicA-tiou; both methods being regard,
consider tQa,t:the other PO'lltAqsis,ted upon, that defend.. Rllt,1Il,I;1Qt tPi appe,ar by the law oU88i) , would be of anyefl'ect its, ,or that such provision would be bindcourt after ,pl:0cess served, /loy more than was the fact ,that act qf;1828 Qewas only allowed to appear and answer. This rnJrY the .service of and not the establishment rul!¥! Qf practic8"apd no court, would be bound to so consider it. i$ be a correct ,view in regard to the time of endecree pro It will neqessarily follow that the demurrer thef,iefefiAant be held to answer.
July 2. 1892.)
(OirCtt¥;¢ourt, D. South OQ,rolina.
, TA(J a employed, who,after protracted !Ducli, ,rMuclld the clainls of a certain lienholder. Afterwards the property was sold'subjectllo tbat lien; and the receiver was discharged. The purchasing oompany recognized: the attorIl<\'lll1' ,c1!1lm for fees,lll\d made a payment on account.After:wards W/.lB another,recelversbip in foreclosure proceedings brought by one 'claiming under a lien creawd by the new Company.. Held, that the attorneys had no claim as against the new receiver or the funds In his hands, as the servloes keeping the TOad, a going concern j and the recognition of had, not4ing ,to do ,the claim by-the new OOinpany amounted !to'no more than a simple contract. which was not "titled to pdority: to the vested liens created \)y that cO!Dpany.
.' ,, : "
The fact that the attorneys' services, by reducing the claim of a prior lienholder, incijienttl.1ly benefited all subsequent lienholders. constituted no ground of priority, " in the absenCEl of any of employment !:Iy them.
InEquity" Suit by Frederick W.B,onnd against the South Carolina Railwl\r for the foreclosure of, a mortgage. Heard on the petmo,q,pf Mit<;hell& Smith for an allowfl,nce of counsel fees to be paid by the ,Petitiondenied. for petitioners. ' Saml. h,;d, opposed. SIMO:NTON,,1)istrict Judge. This is apetition to be allowed counsel fees. The, qqll/ltiori up on the,report of the specialmaster. One T.C)oghlan first lien on the propett)" of the SQuth Carolina property. A bill for the foreclosure ofa mortgage lien of Coghlan had been filed in this court, and John H. Fisher hfl,d,been appointed Pending that suit,