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BENTON v. McINTOSH.

(Circuit Court, N. D. Illinois, N. D.

May 21, 1899.)

No. 25,162.

Federal Courts — Procedure—Objections to Sufficiency of Service.

It is the practice of the federal courts to dispose of objections to the sufficiency of the service summarily on a motion to quash the return, rather than by a jury trial on a plea in abatement, regardless of the state practice.

On Plea to Jurisdiction.

Ernest Dale Owen, for complainant.

Swift, Campbell & Jones, for defendant.

KOHLSAAT, District Judge.

In this matter defendant has filed a plea to the jurisdiction, averring facts tending to show that he was fraudulently induced to come within this jurisdiction for the purpose of service of process. Complainant moves to strike the plea from the files on the ground that in the federal courts the defendant is not entitled to file a plea under such circumstances, but should proceed by motion to quash the return, and the decision should be by the court on hearing of affidavits, instead of trial by jury, as necessitated by issue on the plea. The case of Wall v. Railway Co. (decided by the circuit court of appeals of this circuit at the October term, 1898) 95 Fed. 398, is cited in support of this contention. That decision does hold that the federal court may ignore state practice in such a matter, and that a motion to quash the service, and not a plea in abatement, has been the usual practice in the federal courts to reach such a defense. The decision does not hold that it would have been error to follow the state practice, however, and the question of convenience and dispatch seems to be the basis of the different decisions cited. On this latter ground I will enter an order that the plea already filed stand as a motion to quash the service, that the same may be supported by additional affidavits filed within five days, and that complainant have five days thereafter within which to file counter affidavits.

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