M'GILLIN
v.
CLAFUN.
657
MCGILLIN t1. CLAFI.IN
et ale
(CirclJ/tt Court, N. D. Ohw. E. D. December
a, 1899.)
No. 5,019. 1. REMOVA.L Oll' CAUSES-SPECIAL ApPEARANCE IN STATB COURT-EFFECT QlI'REMOVAL. A nonresident defendant, who flies in the state court 0. special appearance, for
the purpose of objecting to the jurisdiction, and subsequently removes the cause to 0. federal court, expressly disclaiming in his petition for removal any purpose to enter 0. general appearance, does not by such removal waive the jurisdictional question, but. may renew the same, and have it determined by the federal court. In an action commenced in an Ohio court by attachment and garnishment proceedings. supplemented by publication of service, defendants, being nonresidents, entered 0. special appearance, as follows: "And now come the defendants, [naJ;1l(ng them,] for the purpose of tb.ifl motion only, and disclaiming any and all of entering an appearance to this action except for the purpose of this motion,and move the court for an order dismissing this action, quashing the process of garnishment herein and the service of notice upon them by publication, for the reason that this court has acquired no jurisdiction in this action of either the persons or the property of these defendants, or either of them, none of them baving. been served withsuminons herein, and no property belonging to them, or either of them, having been seized upon such order of attachment. and none of the garnishees named therein. or served therewith, .having property of these defendants, or either of them, in their possession or under their control, or being indebted to these defendants, or either of them, in any way. and these defendants being nouresidents of and absent from saidstatej and also move the quashing of said process of garnishment upon the further ground that the affidavit of the plaintiff filed herein was not sufficient to authorize the issuing of said process." Hefil, that this motion was not broader than that contemplated by the Ohio statute. and did not operate as 0. general appearance. Smith v. Hoover. 89 Ohio St. 249, followed. In an action in an Ohio court against a nonresident, commenced by the issuance of attachment and garnishment process, and supplemented by publication of service, the sheriff's return on the summons and garnishment showed that neither defendant nor any of his property had been found in the county. Each of the garnishees answered that be had no property or credits belonging to defendant. and these answers were not controverted by plaintiff, as allowed by the Ohio law, though sufficient time had elapsed for him to do so. Hel.d that, as the case stood, there being no personal service and no res to support the publication, defend.ant was entitled to a dismissal of the cause, on special appearance and motion therefor.
S.
ApPEARANCE-SPECIAL A.ND GENERAL.
8.
SERVIOlll BY PCBLICA.TION-RES TO SUPPORT.
At Law. On motion to quash service and dismiss the action. J. M. Jones amI Foran & Dawley, for plaintiff. Henderson, Kline & Tolles, for defendants. RICKS, District Judge. This suit was instituted against the defendants in the court of common pleas of Cuyahoga count.}', Ohio, to recover the sum of $2,093,000, upon nine different causes of action. set forth in the plaintiff's petition. The controversy between the parties involves a large number of transactions growing out of the sale of dry goods, investment in cattle ranches, real estate, notes, accounts, and other choses in action. The suit was instituted in the state court on the 31st of March, 1892, by the filing of the petition and an affidavit for attachment. Summons for the defendants was issued on the same day. On the 11th of April, 1892, the summons was returned by the sheriff, "Defendllrllts not found in my Gounty." On April 1 th the sheriff returned t4e<;)];der of attachment, showing service and order to answer as such garnishee in the form provided by law made upon each of the insurance v .52F.no.8-42
'653
FEmllRAL' REPORTER"
voL 52.
companies named in the exhibit to the plaintiff's affidavit for attachment, and further retlirns that "defendants .had no goods and chattels, belonging to thelp, found in my c()unty." On the lands, and 8th of June,' f892, an affidavit' fur publication was' filed'tby the plaintiff, setting forth the nonresidence of the defendants, that an order of attachment and garnishment, had been issued and levied upon the property of the and tbat their creditors had been gllrnished. On the 11th ofJllne, 1892, the re<,,ordcertifies that copies of the paper containing such :Pl;iblication were to the defendantsa.t their post office address inJhestate of New York. bn the 11th oUune, 1892, the Cleveland Dr>" ,Goods Company filed its answer, denying any indebtedthe defendll.nts, or that it had any property of any ness of any On the 12th of kind under its control belonging to the July, lS92, thl;l answer of some 48 fire insurance co,mpanies, as garnishees, wosfiled, in which, after protesting against the right to serve the several' agetltsof the garnished parties with procesg,;by garnishment, theyproceed,anddeny, each fOf itself, that it has any property of the defendantS in custody, or WIl.S at any time before or since the plaintiff's suit \Vas filed in any way 'indebted to any of the defendants, sets forth'that each, had policies 'of insurance on the stock of a certain firm of the E,' M].MeGillin Dry Goods Company,and,without conceding any liability On SI,lCh tbat8uch liability in dispute, that no n'Oticeofany assignment or a transfer of any interest in said goods so insured was ever made to defendants, and therefore denies all indebtedness to them, or either of them. On the 12th of July , 1892. Dry GOQd(Companyfiled its answef,denying all indebtedness or liability to tnedefendants" or either of them. On the proof Ofp,ublication was filed, in which the defend26th of July, ants were notified to appear and answer plaintiff's petition in said court day of August,1892. On August 1, 189f. the Guardian on Assurance Company, of England, filed its motion to quash the service by garnishment. On August 4, 1892, the defendants entered the following special appearance: "And now come the defendantfl, John Claflin, Ed. E. Eames, Daniel Robinson, Horace J.. Fairchild, and Dexter N. Force, for. the purpose of Lhis motion only, and disclaiming any and' all intention ofen'tering an appearance to this aC.tion,exeeptfor the purpose; ofthis motion, and move the court for an order. dismis!,wg' this action, quashing the, process of garnishment herein and the service of notice npon them by pUblication, for the reason that this oourt has acq'liired no jnrisdiction in tnisaction of either the persons or the property of'tltese defendants, or either of them, nOne of them having been served wlthsummonsh'ere'in, and no property beloilging'to them, or either of them, having ,been seized upon such order of attachment, and Ilone of the garnishees named therein. OJ' served thel'ewith, havinj{ property of these defendants, of tbem, in possession or under tbeir cqntrol, or being indebted tpthese defendan.ts, 0t: either of them, in way. and these of from state j ana also move the qURStllOg of said process of garnIshment upon the further ground that'the affidavit of the' plaintiff tiled herein was ndtsufficient to authorize the iSSUing of said process."
". U'GILLIN
CLAFLIN.'
On the 5th of August,1892, the defendants filed their petition for removal of said suit to this court, and in such petition referred to the pendency of the motion to dismiss for want of proper service; and,disdaim-, .any intention of entering an appearance to the action generally, the petition was filed. The defendants, having filed their transcript in this court, now renew the motion ·filed in the state court to quash the service in this case and dismiss the action. This motion presents a question as to which there has been great diversity of opinion in the reported cases from the various circuit courts of the United States. The defendants, having entered their appearance in the state court for the sole purpose of moving to dismiss the pending proceedings and to quash the process of garnishment, and for no other purpose, and having so filed their motion, afterwards presented their petition for the removal of the suit to this court, and in said petition again disclaimed any intention thereby to enter an appearance in the case, reciting in said petition the nature of the motion to the jurisdiction pending, thereupon tendered their bond, and asked for an order to remove the case to the federal court. It is now contended by the plaintiff that, notwithstanding all these precautions and disclaimers, the defendants, by filing their petition for the removal of the controversy from the state court, thereby entered a general in said court, and waived all right to controvert in this court .the question as to whether or not they were properly and legally in the state court by the garnishment process and publication thereon. As before stated, there is great conflict in the decisions of the federal courts on this question, and, in view of this conflict in the various circuits, it may perhaps be instructive and of value to note the principal decisions made upon this question. In the case of Atchison v. Morris, 11 Fed. Rep. 582, the motion to set aside the service of summons made by an officer of the state court was first entered in the United States circuit court for the northern district of Illinois, after the case had been removed to that court. The defendant had been attending the United States court at Chicago as a witness, under service of process, and while so attending was served with summons issued out of the superior court of Cook county. He filed his petition for removal, and, upon docketing the case in the United States court, moved to set aside the service. Judge DRUMMOND held that by such removal the defendant did not enter "such an appearance as to deprive him of the right to make objection in this court to the service of summons." In the case of Small v. Montgomery, 17 Fed. Rep. 865, the conditions were similar to those above cited. The defendant resided in Tennessee, and was under indictment in a Missouri court, and while there,under process of such court, was served with process from the St. Louis circuit court. He filed his petition for removal, and entered his special appearance for that purpose. After the removal the defendant filed. plea in a1:>atement, setting forth the facts of service as above stated, and raising the question of the sufficiency of· the service for the first time in
FEDE1U.L,.ltEPQRTER, vol; 52.
concurring. . The case.of Miner v. Markham, in the eastern distriet of Wisconsin, reported in 28 Fed. Rep. 387, presents substantially the same questions as bothtbe above cases cited. A member of congress was served with process while on his way to attend a session of congress. A motion to set aside the service was entered after the special appearance in the state court. Motion denied in the state court without prejudice to his right to renew the same in the United States court. Judge DYER held that filing petition for removal and bond did not waive the privilege of contesting service in the federal court. The case.was dismissed. In the case of Perkins v. Hend1Yx, in the district of Massachusetts, 40 Fed. Rep. 657 , the suit was brought in the state court, and service by attachmeut:tdld publication made. No personal service had. Suit removed, to dismiss for want of jurisdiction first made in the UnitedStates'court, and sustained by Judge COLT; the opinion of Judge DRUMMOND in Atchison v. Morris approved and followed. In the case of Goldenv. Morning NCwsoj New Haven, 42 Fed. Rep. 112, the motion to vacate sendee on the president of the defendant corporation, served while temporarily in New' York on business, but when the corporation had no office or place of business in said district,first made in the UnitelflStates court, was sustained by Judge LACOMBE. In the case of Bentlif v. Finance Corp., 44 Fed. Rep. 667, motion to dismiss, because the state court had no jurisdiction, filed and presented, after removal, in United States circuit court, Judge WALT,ACE held that the state court did not acquire jurisdiction, and could not have rendered a judgment that would have had any validity. The suit was dismissed. In the case of Ahlhauser v. Butler, 50 Fed. Rep. 705, motion to dismiss was made in the United States court after the case was removed, based on the ground that the state court was without jurisdiction of the cause for the want of personal service of process, and of a res to support service by publication. The motion was denied, but the court held that the filing of the petition to remove was not a waiver of a right to contest this jurisdictional question. .These are the principal cases relied upon to sustain the motion in this senior circuit judge, in the case of New York case. In this circuit Co. v. Simon, pending at Toledo, in the western division of this district, filed his opinion upon this question. which is as follows: "The settled rule of this circuit is that a ddenolmt who removes a suit from the state court to the circuit court of the United States will not be heard in this c(jurt to question the fact that heWas. properly before the state court whens\lch removal wa.S e;t;fectf'd. The right I;>f removal involves, by necessary implication. the aSllulj:lption that there is a vlllid and. subsisting suit pending i'n the state coutt· against the removing parties. It is only the controverily involved in such state suit that is intended to be removed. There is nothing hi the remova)'seclionof the acts of 1887, '1888. or of previous acts. to warrant the idea that a defendant could remove a cause from the state court
tbJ:l U'i\lited States court. .The case was .dismissed, the service having been, held to be insufficien;tby Judge TREAT, Circuit Judge MCCRARY
!-i'GILLIN
CLAFLIN.
661
to the circuit court of the United States in order merely to have the latter court pass upon and determine the question whether suCh defendant was, properly before the state court. If the defendant does not raise the question in the state cOllrt as to whether he has been properly served or is properly before such court before presenting his application and obtaining a removal of such suit to the United States circuit court, he should, it seems to us, be deemed to have waived or abandoned such objection. The federal stat· utes do not make the question of the validity or invalidity of the service under which a defendant is brouKht before the state court any ground for reo moving a suit. The right of removal depends upon the existence of an actnal pending suit, which may determine the matter of controversy involved in the litigation between the plaintiff and the removing defendant. The removing party is required to state in his petition the pendency of the suit, the diverse citizenship of the parties at the commencement of the suit and at the date of application for removal, the controversy, and the amount involved,etc. , If, after effecting the removal of the suit, with the controversy or controversies it involves, the defendant may then successfully, in this court, impeach the validity of the service under which he was brought into the state court, and thereby cause the suit to be dismissed as to him, it will result that the jurisdiction of the court which he has voluntarily invoked to hear and determine the matter of controversy between the plaintiff and himself will be defeated. HaVing, of his own motion, transferred the suit to this court, the defendant shoulq not be heard here to say that he was not properly brought into the state court, and that the suit against him should therefore be dis,missed from the circuit court to which he had it removed for trial upon its merits. With great deference for the opinion of Judge WALLACE, who in the case ()f Bentlif v. Finance Corp., reported in 44 Fed. Rep. 667, held that a removing defendant had the right in the circuit court to move to quash the service under which he was brought before the state court from which the suit was removed, this court is of the opinion that the contrary rule. as laid down and enforced in this circuit, presents the sound view on this question, and should be adhered to." . In the case above decided the Chase National Bank did not file the motion to quash the service of summons until after the case had been removed to the federal court, and the motion would then have been after the rule day for appearance in the state court; so that in holding that the defendant in that case had waived his right to test this question of jurisdiction by thus failing to file his motion in the state court before ask· ing for its removal to this court, the learned circuit judge did not establish a precedent in this circuit which will preclude nonresident defendants from still having the right to have this important and oftentimes vital question passed upon in this court, when the proper motions are filed in the .state court before removal. In this case, when the petition for removal was filed, as heretofore stated, the issue was distinctly made, and the controversy then pending was as to the jurisdiction of the court over the defendants. The summons issued in the case had been returned bv the sheriff, showing that the defendants were not found in his c0unty.· No personal service of the process had been made, and no further writ to secure such service was issued. The return of the sheriff on the writ of .attachment showed no property found, and the answers of the garnishees -showed no credits to the defendants, as before recited. Notwithstand-.jng this return of the sheriff and these answers of the garnishees, affida-
662
vol. 52.
vit'for ptiblication was filed, 811ch publication was made, requiring appear on the '6th day of August, 1892; ',' On the 4th the speCial the entered, as on. removal wasfiled,asafores8;il}.", , !f»r:.tae trfLUscript, this court, the defendants presented .aflidavits insuppo.rt of the ,pending motion that' they were residents of the state of New York; that they were not' partners, but were a corporation organiiedJune 4, 1890; that they had examined, list ,of. defendants served garnishee process; and the defendaJ;\t.Jolni'Claflin avers in bis affida:vitthat neither of said defendants had, tilpe of the of said suit, or at any time thereafter, in.their·possession or under their control, any property, rights, credits, or propwtyrights of any nature belonging to H. B. Claflin & Co. Thf!lCdirtroversy, therefore, as removed to this court by these proceedings,' is one of jurisdiction. It is not as to the mere regularity of upon the within the proper. jurisdiction of the PQ,t it relates to the sufficiency of the proceedings'by which it is claimed 'nonresidents of the state were brought intO that court. The controve11ly ieone the :defendants ought to have the right to make in this court. ,Ouropinion upon this qu,esHonis as important to them as' our 0P1niQQ,'upoP the merits· of the case would b.,. Raving distinctly ma,de proper moti0l'l in the stateCo,urt,. within the time Rresc,ribeaJ>y tllelaws of Ohio. and having distinctly disclaimed any purpose or,intent waive that question by filing their petition for movllJ, ;upon'what just principle baijit be said that these defendants are nowforeclbsedfrom invoking our decision upon this very vital and primaryqutiEition? The exemption from Service of process in this state in the manner attempted in this cllse is a privilege and right of the highest order and, greatest value to these defendants; and one which they ought' to have the 'right to have p39sedupon by this court. The amount in controversy and the natulleof. the issues to be joined make this a case peculiarlysubjectto be affeoted by those local influencE'S and prejudices against which it is manifestly th& intent and purport of all removal acts to protect nonresident defendants. The question of proper service of proc.essandjniisdiction is as muohsubject to such influences as any other. Why, then, deny to a nonresident defendant the right to controvert such questions in the federal court, and put him at once to issue uponthemerits? Is there anything in the acts of congress to support such a elairn ?I The judiciary act of1789, pat.. 12, provides thatthedefendant shall, "at the titne of entering his appearance in such state court, file a petition for the removal of the· cause for' trial into the next circuit court," etc. The>decision of the supreme court in the case of Bushnell v. Kennedy, 9 Wall.' 387,was. made under this act of 1789, which seemed to require: an entry of appearance in' the·state<,'OU'l'tdontemporaneous with' thefiHngof the- petition for 'removaL This provision is exce'ptional, and, is'found alone 'inthis net. The act of July 27, 1866, (14 St. at, ,) provides that nonresident defendants "may at any
to
668
time before the trial or final hearing of the cause' file a petition for the removal of.the cause," etc. The act of March 2, 1867, (14 St. at Large, p. 558,) after providing for a removal by either plaintiff or defendant, if a nonresident, upon filinf( affidavitas to local prejudice, further provides that such nonresident may, "at any time before the final hearing or trial of the suit, file a petition in such state 'court for the removal," etc. The act of March 3, 1875, (18 St. at Lar?;e, p. 470,) provides that the party entitled to a removal under said act" may make and file a petition in such suit in such state court before or at the time at which said cause 'Can be first tried, and before the trial thereof; for the removal of such suit," etc. The act of August 13, 1888, amending and makingintelligible the act of March, 1887, (see 25 St. at Large, p. 434,) provides that the party entitled to removal "may make and file a petition in such state court at the time or any time before the defendant is required by the laws of the state, or the rule of the state court in which suit is brought, to answer or plead." The language of the chief justice, therefore, in the case cited in 10 Wall., though not pertinent to the question decided or before the court for 'Consideration, would seem to be based upon a construction of the act which required the removing defendant to enter his appearance in the state court before or contemporaneously with the filing of his petition for removal. Such appearance mig-ht, without a strained construction, be held to be a waiver of the insufficiency of, or irregularity in, the service of process, and to preclude, the removing party from such contention thereafter. But it is significant that all the subsequent acts relating to this subject do not require the entry of appearance by the removing party either before or at the time of filing his petition for removal. The be filed, but none of acts differ as to the timp. when such petition them contain the provision of the act of 1789, above stated. It may be suggested that this language refers to the time when the petition for removal should be filed. It may bear that construction, but the more natural and reasonable reading of the words is that an appearance is to be entered. It does not say "at the time for entering his appearance," or "at the time fixed for entering his appearance," but says "at the time of entering his appearance." The is certainly quite different from that used in all the other acts, and the construction evidently given to it is such as I have stated, and seemed to contemplate such an act by the petitioner. It is fair, therefore, to infer that by such omission in subsequent acts the congress did not intend the filing of a petition for removal to act as a general appearance, and to preclude the removing party from the right to in voke the opinion of the federal court upon all questions involved in his controversy so removed. The petition for removal, then, under all these subsequent acts, brought the controversy, as it existed at the time the petition was filed, to the federal court. Is it fair to say that the application for removal assumes that a valid· and subsisting suit is pending in the state court against the removing party? The petition recites that a controversy exists between citizens
664
FEDERAL IU:l'ORTER,
of different states. A controversy as to what? Why not a controversy as to the, jUJ'isdiction, when that is a substantial and well-founded subject for contention? It would be manifestly unjust to deny to the removing party the privilege to contest jurisdictional questions in the federal court for the reason, as frequently given, that such questions ought to have been disposed of .:in the state court before the order for removal was made. The removing party cannot delay the removal of the causer to await such action by ,the state court. He may file the proper motiop$ to present such questions, and should do so before the time prescribed for filing his petition for removal has elapsed, but if the state court, fOJ! any reason, does not dispose of such motions before the statntor)' tiI:l!lEl ,for filing the petition for removal, the fa.ult is not that of the rem<ilvmg' ,party. The petition for removal must be filed at the time fixed. To :delay such proceeding is to lose the right to remove, and therefore· the removing defendant cannot be held· responsible for the failure of the state court to pass upon the motions filed. The time prescribed by the statute is short, and in the usual course of business in the state courts such motions are'not heard before.the time for filing the petition, fQr, removal is reached,. and are therefore not disposed of when tbe"prayerforremoval is.made, and wben, by the laws, all furtber proceedings in that court are ,suspended. To foreclose such defend. ant from those ,questions in the federal courts for such reasons would therefore be,tnanifestly unjust. But it is .urg.ed that, if such questions are reserved for· controversy in the federal court after removal, it will often result in hardships, because the jurisdiotion of,the state court might be defeated for mere irregularity of service,.whichcould have been cured in the state court by an amendment oftheotficer's return on. the process, or by amendment in the writ. Suehcases frequently arise in this district, where some 40 or more law oases; removed from the state courts, are now pending, and it. has been a source of considerable perplexity to me to know how to pass upon them.. But in almost every. case of this kind the defective service has been the result of carelessness ,or .ignorance in the return made on the process.by the sheriff, and such defect should have been promptly detected bya diligent attorney for the plaintiff, and cured by prompt. attention on his part, before any petition for removal was filed. With proper diligence on the part of plaintiff's attorneys, a.ll such questions can and should be eliminated in the state court before the removal is effected, and t if negligence or ignorance of such attorneys leaves such privileges and rights undisposed oft.the removing defendants are not responsible for delays that may result; for in most cases the only hardship imposed, by disposing of such questions in the federal courts is to. dismiss the ,suits without prejudice to the right of the plaintiff to begin a new action in. the state court,and obviate the defects fatal in the dismissed case. But the principle involved is. too important to removing defendants to have it adversely decided upon the. ground of any hardship to the plaintiff of·the. character just considered. They can be obviated, as.
M'GILLIN V. CLAFLIN.
665
suggested; but to preclude the defendants from invoking the judgment of the federal courts upon the jurisdictional question is to deny them a right and privilege which is the foundation and corner stone of just and legal defenses. When, by proper action, they have presented this con· tention in the state court, and for reasons for which they are in no way responsible the contention has not been decided, and they remove the controversy to the federal court, they bring this primary and vital question into that court for its decision. When the contention goes to the jurisdiction of the court over the defendants, as nonresidents, the fed· eral court can pass upon it with aU the aids and authority of the state court. If the jurisdiction must fail for want of proper service, either personal or constructive, there is no greater hardship to the plaintiff to have such question decided in the federal courts than in the state courts. It is the defendants' right and privilege to have that contention decided here, and to deny it to them because they had removed their case is to deprive them in both tribunals of a decision of this vital question; for, if they must dispose of their contention in the state tribunal, they will, in the usual course oflitigation, lose their right of removal, and, if their removal of the cause is a waiver of jurisdictional questions, they are foreclosed on that subject in the federal court, so that they are denied in both courts their right to contest the jurisdiction, and must tryon the merits alone in the federal court, or submit their whole controversy to the state tribunals in case they hold adversely to them on the jurisdictional question. This is a denial to nonresidents of a great privilege and right, for the federal courts were principally organized for the protection of nonresident litigants. In the case of Gordon v. Longest, 16 Pet. 97, the supreme court of the United States said: "One great object in the establishment of the courts of the United States, and regulating their jurisdiction, was to have a tribunal in each state presumed to be free from local influence, aud to which all who were nonresidents or aliens might resort for legal redress." Briefly, then, what is the effect of a decision that a nonresident defendant waives all right to contest the jurisdiction of a state court by exercising his right to remove a controversy pending therein? Fairly stated, it is this: A suit is pending against him in a state court in which proceedings have been taken to enforce his personal appearance by attachment and publication, which proceedings are defective and void, and which suit by law he has a right to remove to the federal court. He is advised and believes that such service is defective, but, in order to avail himself of the right to remove said controversy to the federal court for trial upon its merits, he must waive the jurisdictional question, and relinquish all contention as to his exemption from suit by such proceedings. This is certainly imposing harsh conditions upon nonresidents as the price for exercising a long-conceded right and privilege. But it may be said in reply that if such nonresident defendant is satisfied the proceedings by which constructive service upon him has been attempted are defective and void, he should be content to controvert such questions in the state court. But why compel him to submit that controversy to a local court, which, according to the spiritand,theory
66&
FEDERAf.,;REPORTlllJl.
yol.: 52.
of allreui(1v.aJ. is su pposed to "be subject more odesfl lqcal infl uences and:prejudices, "while fOreXR(]t1y the same reasons.and,objections his right ,to,remove the oontroversy Imit, involvjng its merits,to:a,;ftideralcourt I can s,eenojust rellson fdr!Such'di8tinction'a;nddiscrimination. The reasons which are held valid andsati,sfttctory to support the right of removal of the' case as to its merits are equally of forceto,supportthe claim that the removal carries the wihole"cwtroversy with,itoSuch,a conclusion confers upon the removing pttrtyLtheproteotion'and benefits of the removalact, free from oonditibnspapdinvolves no:hardships; upOn the plaintiff. His controversy as 1;(ythe sutpciency oftheproceedings by which he claims jurisdiction'waa acquiredove:rthe defendant is carried to the tribunal which bylaw it:isconcededds invested with jurisdiction 'and power to hear imd determine the dasei on its merits" and I fail to see how he is in any way; prejudiced 'by holding that such removal carries the whole contraverBy with,:it. Having thus ftilly reviewed the statutes and decisions bearingupdn thisquestion,because of the great diversity of opinion relating thereto; lam of the, opinion, forthe reasoils atated, that the ante did not waive their, right to controvert the jurisdiction of the state oourt by filing,tbeir petition for removal, and that this motion is now properly 'court foroul opinion. His contended by the· plaintiff thll,t the motion to, the jurisdiction fiJedby the defendants in the state colirt was broader than the statute contemplated, and that .thereby defendants entered an appearance, and are now estopped from questioning the sufficiency of the service. I think the motion filed in this case is formed after the motion of similar charll.Cter cited and approved in the case of Smith v.Hoover', 39 Ohio St. 249, "and properly enters a special appearance for the purposes of the motion. The return of -the sheriff'upon the summons issued as hereinbefore quoted shows that,none of the defendants were found in Cuyahoga county, where plaintiff's suit was instituted. The return of the same officer on the attachment issued as before quoted shows that" defendants had no goods andohattels, lands and tenements, belonging to them, found in my county.l'nThe answers of all the ,defendants upon whom garnishee process was:served disclose that none of them had any credits or property belongihg -to defendants, or either of them,or was in any way indebtedtothem. There was therefore no personal service upon the defendants, no Te8 to support service by publication, and how can it be claimed they are before the court? In the case of Cooper v. Reynolds, 10 Wall. 308', Mr. Justice MILLER, delivering the opinion of the supreme court,· said: "The court in such a suit cannot proceed unless the officer find some property of defend8lnts upon which to levy the writ of attachment. A return ,that none oan..", found is the ,end of the Cllse, and deprives the court of further jurisdiotion, though the pl\blicatton may have been duly made and proven in court." ,
But in the case now under consideration counsel contend that the plaintiff is not concluded by the answers of the garnishees. but may test the truth and sufficiency of such return, denying indebtedness. This is
HEATON PEN1N'SULAR BUTTON-FASTENER CO.
DICK.
667
true in Ohio. But plaintiff has not attempted to controvert these returns of the sheriff, or the answers of the garnishees. The case has been pending in this court quite long enough for the plaintiff to begin his proceedings to show that some property or credits have been attached or garnished. As the case now stands on the evidence and returns, the motion to dismiss should be allowed. but as counsel for the plaintiff claim they have learned of evidence which will enable them to impeach the truthfulness of the answers of the garnishees, and be able to show that when served with process they had in fact property and credits due the de.. fendants, I will continue the motion to dismiss for 20 days, to enable them to offer such evidence.
HEATON PENINSUJ,AR BUTTON-FASTENER CO. 17. DICK
et al.
(Oircuit Oourt, N. D. Illinois, N. D. July, 1892.) No. 870. INlUNOTION-PROCURE:I<lENT OJ' BREACH OJ' CONTRACT-CONTRIBUTORY INl'RINO;EHENT OJ' PATENT.
A bill "Ueged that complainant, owning. patents for button-fastening machines. had sold the patented machines upon condition that tbey should be used only with fasteners made by complainant from the sale of whioh a profit was derived; and that defendants were manUfacturing similar button fasteners, capable of and intended by them for use in complainant's maobines, and were induoing purchasers of tbose machines to use suoh fasteners therein, to the exolusion of complainant's fasteners; and it prayed that defendants be restrained from making for sllle, selling, or offering or advertising for sale, any fasteners, intended for use or oapable of being used in the machines sold by complainant UDder such condition, and from persuading or inducing vendees of such machines to purchase or use in such miloohines any fasteners other than those made and sold by complainants. Held, that the bill should be sustained, on general and a preliminary injunotion should be granted on the bill and affidavits substanuating the charges therein.
In Equity. Suit by the Heaton Peninsular Button-Fastener Company against Joseph C. F. Dick and others to restrain defendants from procuring or inducing purchasers of button-fastening machines from complainant to violate their contracts with complainant entered into on' the purchase of such machines. Heard on general demurrer to the bill and on motion for preliminary injunction. Demurrer overruled, and injunctIon granted. The facts alleged in the biil were in general purport and substance as follows: Complainant is the owner of several letters patent granted for improvements in button-setting machines. the validity of which. has been sustained twice in the United States courts, and under these patents manufactures and sells button-fastening machines called "Peninsular" machines. These machines are sold outright to the users thereof, with the condition that the machines shall be used only with button fasteners made and sold by the complainant, and known as" Peninsu-
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