Imágenes de páginas

to set aside the service of summons was suc- | filed a notice of appeal on October 15, and cessfully argued in the state court.

the next day gave notice of a motion to stay 4. A petition is not insufficient to justify the re proceedings on the order, to be made on

moval of a cause from a state court to a October 24. On the same October 16 the Federal circuit court because the allegation that the time had not arrived at which the plaintiff made an affidavit in which it apdefendant was required to answer or plead is peared that the sum which he sought to rean allegation of a conclusion of law.

cover was more than $2,000. This contained 8. The presentation of the petition to a judge the first definite notice to defendant, as no

of the state court at chambers, and the filing declaration had been filed. An order to of the petition in the state court, satisfy the take plaintiff's deposition and this affidavit statutory requirements respecting the removal of a cause from the state a Federal

were served on the defendant on October 23. circuit court.

On October 26 a petition for removal to the 6. The denial by an inferior state court of a United States circuit court was presented

motion to vacate the service of summons is by the defendant to a judge of the state not res judicata on the question of the valid- court in Chambers, and the bond was apity of such service, when raised in the Federal circuit court to which the cause has been proved. Before the petition for removal was

filed, the motion for a stay came up, on removed. 7. Service of summons on a director of a for- October 24, in the state court, and was

eign corporation who is casually within the argued, and a stay was ordered, the defendstate for a few days confers no jurisdiction ant at the same time being relieved from any on a Federal court, where the corporation is default in appearing. The matter of the doing no business and has no property in the appeal was not passed upon. This order was state.

entered on October 26. On November 4 the [No. 460.]

record was filed in the United States court.

In the circuit court the defendant reSubmitted February 27, 1905. Decided newed its motion to set aside the service of April 17, 1905.

the summons, the plaintiff objecting on

various grounds, which will be dealt with, N ERROR to the Circuit Court of the and moving to remand the case.

On July IN

United States for the Northern District 23, 1904, the court granted the defendant's of New York to review a judgment dismiss-motion and overruled the plaintiff's, and on ing for want of jurisdiction of the defendant August 30 a judgment was entered disan action against a foreign corporation missing the action for want of jurisdiction which had been removed to that court from of the defendant. See Wabash Western R. a court of that state. Affirmed.

Co. v. Brow, 164 U. S. 271, 41 L. ed. 431, 17 The facts are stated in the opinion.

Sup. Ct. Rep. 126. The plaintiff's rights Mr. James G. Flanders for plaintiff in were saved by a bill of exceptions, the error.

form of the judgment, and a certificate of Mr. Maxwell Evarts for defendant in the judge, and the case now is brought here. error.

It is objected by the defendant that this

court has not jurisdiction, on the ground Mr. Justice Holmes delivered the opinion that it does not appear that the want of of the court:

jurisdiction of the court below as a Federal This is a writ of error to the circuit court court was the ground of the judgment. But upon a judgment dismissing the action for it appears clearly that the ground of the want of jurisdiction of the defendant. That judgment was the absence of service on the question is certified from the court below. defendant, and that the plaintiff denied the

The action was brought in the supreme validity of the attempt to remove. See Excourt of the state of New York on April 10, celsior Wooden Pipe Co. v. Pacific Bridge 1903, by serving a summons

a di Co. 185 U. S. 282, 284, 285, 46 L. ed. 910, rector of the

of the defendant in error, the 912, 913, 22 Sup. Ct. Rep. 681, and cases railroad. On April 22 the plaintiff's at- cited. The former question was decided to torney gave twenty days' additional time to be subject to review on error by this court the defendant in which to appear generally in Shepard v. Adams 168 U. S. 618, 42 L. or specially, or to move to vacate the sum- ed. 602, 18 Sup. Ct. Rep. 214. That case has mons. On May 11 a firm of lawyers gave not been overruled. The latter question was notice of a motion to set aside the service, held also proper to be brought here, in and also that they appeared only for that Powers v. Chesapeake & O. R. Co. 169 U. S. purpose. An agreement was made giving the 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264. The defendant time to appear after the motion jurisdiction of this court must be sustained. was decided. The motion was not decided Coming, then, to the motion to remand, it until September 28, 1903, when it was de- is said that the petition to remove was filed nied, and an order to that effect was entered too late, because the time for answer had exon October 2. The defendant's attorneys 'pired. It would be a strong interpretation


of the New York Code of Civil Procedure, point is when the demand was stated in the § 418, to say that it requires an answer with case. Assuming the objection to be open in twenty days after the summons, when no here, if there was any defect, which we do complaint, or even notice stating the sum not imply, it was but a defect of form. of money for which judgment will be taken Powers v. Chesapeake & O. R. Co. 169 U. S. ($ 419), has been served. See Dancel v. 92, 98, 101, 42 L. ed. 673, 675, 676, 18 Sup. Goodyear Shoe Mach. Co. 106 Fed. 551. Ct. Rep. 264. The presenting of the petition But it is a sufficient reply to the motion to a judge in chambers, and the filing and to the objection to the removal, that of it in the state court, satisfied the statute. the petition was filed as soon as the case be- See Noble v. Massachusetts Ben. Asso. 48 came a removable one. Powers v. Chesa- Fed. 337. Loop v. Winters, 115 Fed. 362. peake & 0. R. Co. 169 U. S. 92, 42 L. ed.

We come, then, to the setting aside of the 673, 18 Sup. Ct. Rep. 264; Kansas City summons. We assume, for purposes of deSuburban Belt R. Co. v. Herman, 187 U. cision, as we already have assumed, that S. 63, 67, 68, 47 L. ed. 76–78, 23 Sup. Ct. Shepard v. Adams, 168 U. S. 618, 42 L. ed. Rep. 24. The suggestion that the defendant 602, 18 Sup. Ct. Rep. 214, is consistent with was estopped by the fact that it followed the decisions that the jurisdiction of the up its motion to stay in the state court in circuit court as a Federal court only is in accordance with its notice, on October 24, question. Louisville Trust Co. v. Knott, when the right to remove had been made to 191 U. S. 225, 48 L. ed. 159, 24 Sup. Ct. Rep. appear the day before, seems to us too 119; Bache v. Hunt, 193 U. S. 523, 48 L. ed. technical, supposing it to be open here. In-774, 24 Sup. Ct. Rep. 547; Courtney V. deed, it was a proper preliminary in one re- Pradt, 196 U. S. 89, 25 Sup. Ct. Rep. 208, 49 spect. The order made on that motion was L. ed. 398. If there has been no valid service “that the defendant be relieved from any the court has no power, and a distinction is default in appearing herein, and that all possible between such a case and a mere proceedings on the part of the plaintiff be question touching the proper limits between stayed, pending said appeal and until ten equity and law, or the traditional authority days after the decision thereof, except” an of the court. We leave Shepard v. Adams order for the examination of the plaintiff. It as we find it, since a reconsideration of the did not estop the defendant from insisting point is not necessary to decide the present on a substantial right, that it got rid of a


It is said that the decision of the purely formal objection, which still is pressed, state court, although appealed from, was -in our opinion without ground. Dancel v. res judicata. But it stood no higher than Goodyear Shoe Mach. Co. 106 Fed. 551.

a similar decision made by the circuit court, The order did not take effect until October if the case had been begun before that court. 26. Wilcox v. National Shoe & Leather Bank, It may be that the defendant would have had 67 App. Div. 466, 73 N. Y. Supp. 900; no right to renew its motion, but the circuit Hastings v. Twenty-third Ward Land Im- court would have had power to give it leave. prov. Co. 46 App. Div. 609, 61 N. Y. Supp. If the circuit court was satisfied that it, or 998; Vilas v. Page, 106 N. Y. 439, 455, 13 N. its predecessor the state court, had made a E. 743.

mistake, it had power to reopen the matter. It is urged that the petition did not justi- It did so, and its action in that respect is fy removal, because the allegation that the not open to question here. However strintime had not arrived at which the defendant gent may be the practice in refusing to rewas required to answer or plead was an al-consider what has been done, it still is but legation of a conclusion of law. Allegations practice, not want of jurisdiction, that which involve such conclusions import that makes the rule. the facts which justify them are true. Many The plaintiff in error does not argue the such allegations are permitted, to avoid an merits of the order of the circuit court. Asintolerable prolixity on matters not likely suming that they, as well as the jurisdiction to be controverted. Haskell v. Merrill, 179 of the court to make the order, are open Mass. 120, 123, 60 N. E. 485; Alton v. First here, we see no sufficient reason for disturbNat. Bank, 157 Mass. 341, 343, 18 L. R. A. ing the decision. The circuit court was war144, 34 Am. St. Rep. 285, 32 N. E. 228; Com. ranted by the affidavits before it in finding v. Clancy, 154 Mass. 128, 132, 27 N. E. 1001; that the defendant was doing no business Windram v. French, 151 Mass. 547, 551, 8 and had no property in the state of New L. R. A. 750, 24 N. E. 914; Evans, Pl. 1st ed. York, and that the service on a director 48, 139, 143-146, 149–157, 164. The facts casually within the state for a few days appeared of record. When the defendant ex- was bad. Conley v. Mathieson Alkali Works, pected the plaintiff to demand more than 190 U. S. 406, 47 L. ed. 1113, 23 Sup. Ct. $2,000 is immaterial. The only material Rep. 728; Geer v. Mathieson Alkali Works,


190 U. S. 428, 47 L. ed. 1122, 23 Sup. Ct. county surveyors of Nemaha county, NeRep. 807. The arguments do not seem to braska, and Atchison county, Missouri, as us to need to be noticed in greater detail. reported by the commissioners and set forth Judgment affirmed.

in the opinion of the court, constitute and be correct boundary lines between the said

states, the same constituting the middle of (197 U. S. 577)

the old channel of Missouri river as found STATE OF MISSOURI, Complainant, by said court in its opinion.

"It is further agreed between the parties STATE OF NEBRASKA.

hereto that the monuments marking said

boundary line established by the said county Boundaries between states.

surveyors of said counties are not of a per

manent character, and many of them have The middle of the channel of the Missouri become destroyed or removed, and that in

river, according to its course as it was prior order to mark a permanent boundary line to the avulsion of July 5, 1867, decreed to be it is necessary and is deemed best that perthe true boundary line between Missouri and manent monuments be erected at regular inNebraska.

tervals on said line in such manner as will [No. 5, Original.]

quiet all dispute in reference to said bound

ary. March 6, 1905.

“It is further agreed that said permanent

monuments can be best established under the ORIGIN RIGINAL SUIT in equity on bill and supervision of the commissioners heretofore

cross bill to settle a disputed boundary appointed by the court, to wit, Alfred Hazline between the states of Missouri and Ne- lett and John W. Halliburton; and it is braska. Final decree entered establishing therefore requested by the parties to this the middle of the channel of the Missouri cause that the court, by a proper order, diriver according to its course prior to July rect and require said commissioners to es5, 1867, as the true boundary line.

tablish or cause to be established under their See same case, ante, p. 155.

direction such permanent monuments as may This cause coming on for final decree, in by them be deemed necessary in the prempursuance of the opinion of this court filed ises and in accordance with the order of the herein on December 19, 1904, and the stipu- court heretofore made, and make a report lation of the respective parties by their to the court of their acts and doings therein. counsel filed herein on January 30, 1905, In the execution of their powers herein, said which said stipulation is in words and fig. commissioners shall have authority to emures as follows, to wit:

ploy such surveyors and other assistants and "In the opinion of the court in the above-procure such material as may be necessary entitled cause, the order and finding of the in the establishment of the permanent monucourt having been made as follows:

ments, marking said boundary line in ac"It appears from the record that about cordance with the opinion of the court herethe year 1895 the county surveyors of Ne- tofore rendered and this agreement. maha county, Nebraska, and Atchison “It is further agreed that said commiscounty, Missouri, made surveys of the sioners for their services herein shall receive abandoned bed of the Missouri river, ascer- such compensation as may be agreed upon tained the location of the original banks on by the respective parties, and if the parties either side, and to some extent marked the are unable to agree, then such as may be middle of the old channel. If the two states fixed by the court after the services have will agree upon these surveys and locations been performed and due report thereon as correctly marking the original banks of made. the river and the middle of the old channel, "On account of the unfavorable condition the court will, by decree, give effect to that of the weather during the winter months agreement; or, if either state desires a new and of the character of the ground during survey, the court will order one to be made, the spring months, the parties hereto reand will cause monuments to be placed so as spectfully request the court that said comto permanently mark the boundary lines be missioners be granted until the 1st day of tween the two states. The disposition of the May, 1905, in which to make their report. case by final decree is postponed for forty

“State of Missouri, Complainant, days, in order that the court may be ad- "By Edward C. Crow, vised as to the wishes of the parties in re

"Attorney General. spect to these details."

“Sam B. Jeffries, "In pursuance whereof now come the

"Assistant Attorney General. parties hereto by their respective counsel, “State of Nebraska, Defendant, and agree that the said surveys made by the "By F. N. Prout, Attorney General."

And on motion of Herbert S. Hadley, at- | channel of the Missouri river, according to torney general of the state of Missouri, coun- its course as it was prior to the avulsion of sel for said complainant, that a decree be July 5, 1867, is and shall be the true boundentered in this cause in accordance with saidary line between Missouri and Nebraska, opinion and stipulation:

and that said boundary line is indicated It is now here ordered, adjudged, and, de- upon and shown by the following plat: creed by this court that the middle of the

[merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][ocr errors][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][ocr errors][merged small][merged small][ocr errors][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][ocr errors][merged small][merged small][ocr errors][merged small][ocr errors][ocr errors][ocr errors][merged small][merged small][merged small][merged small][ocr errors][merged small][ocr errors][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][ocr errors][ocr errors][merged small][merged small][ocr errors][ocr errors][merged small][merged small][ocr errors][ocr errors][ocr errors][ocr errors][merged small][merged small][merged small][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][merged small]
« AnteriorContinuar »