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Gordon E. Cole, for plaintiff.
McCRARY, C. J. This is a motion to remand. The case is equitable in its character, and was commenced in the state court under the practice authorized by the laws of Minnesota. Certain issues of fact, some five in number, I believe, were submitted to a jury. The evidence was heard, the case submitted, and the jury failed to agree. They agreed upon two of the questions submitted to them, but failed to agree as to three. The cause is removed under what is known as the "Local Prejudice Act," which provides that, upon making an affidavit that by or on account of local prejudice the parties are unable to get justice in the state tribunal, the case may be removed at any time before the final hearing or trial. The only question in this case is as to whether there was a final hearing. The cause went so far as for the court to receive the evidence and to submit to the jury the questions of fact which had been framed for their consideration, but as to the most material of these questions the jury failed to agree. There was in effect no verdict. It is as if there had been an entire failure to find any verdict, because a partial verdict in such a case is no verdict at all. If a trial by jury under the statutes of Minnesota, in a case of this character, is a part of the trial of the case, there has been no final trial within the meaning of the statute. Of course, it is well known that under the old practice a jury in a chancery case was only called for the purpose of aiding the conscience of the chancellor by settling certain facts in dispute. But, under the peculiar provisions of the statute of Minnesota, we are of opinion that where the court determines, either upon its own motion or by consent of parties to submit the facts in a chancery case to a jury, then the verdict of the jury becomes a necessary part of the final trial of the case; and, as there was no verdict, we hold there was no final trial of the case, and therefore the motion to remand is overruled.
PARROTT v. ALABAMA GOLD LIFE Ins. Co.
(Circuit Court, N. D. Texas. December 15, 1880.)
1. T.EMOVAL-EXCEPTION TO PROCESS_JURISDICTION OF PERSON OF DEFENDANT.
The application of a defendant for the removal of a cause from a state to a federal court, does not constitute a waiver of the use and service of proper process of summons or citation in the cause, where the first action of the defendant, in both the state and federal courts, was to except to the process by which it was attempted to give those
courts jurisdiction of his person. 2. SERVICE OF PROCESS-NON-RESIDENT CORPORATION-PERSONAL JUDG
A certified copy of a petition and a writ called a “citation," directed “ to any person residing in Mobile county, Alabama, competent to make oath of the fact of service hereof," was attempted to be served, in accordance with a statute of the state of Texas, (Sess. Acts 1875, p. 170,) on a defendant corporation, by delivering the same to the president of such corporation at Mobile county, Alabama, by a person who made oath that he made such delivery. Held, that such service would not authorize such personal judgment against the nonresident corporation as could be enforced by execution against any property of the defendant found within the state of Texas.-[Eo.
Pennoyer y. Neft', 95 U. S. 714,
Motion to Quash Service of Process.
McCormick, D. J. Two questions occur on the consideration of this motion: (1) Has the defendant been served with process such as can compel an answer to plaintiff's suit, or permit the court to proceed with the case were no answer, or appearance made by the defendant? (2) Has the defendant, by obtaining a removal of this cause from the state court and having the transcript entered here, made such an appearance, either in that court or in this, in said cause, as dispenses with the requirements for bringing in parties by service of process ?
The last question will be considered first, as, if it is determined in the affirmative, the other question becomes immaterial. The statute in reference to removal of causes under which this case is brought here explicitly declares that after reaching this court the case shall proceed as if originally brought in this court. The proceedings for removal appear
to be no part of the case for any other purpose than to effect the removal of the case from the state court to this court in the precise condition said case presented in the state court at the time the application for removal was presented to that court. That application cannot certainly be taken as & consent to submit to the jurisdiction of the state court; and, as I understand the doctrine of appearance taking the place of or dispensing with the use of process to bring parties under the jurisdiction of the court, there must be some action of the party which reasonably evidences a voluntary submission to the jurisdiction of the court over the person of the party. In this case the defendant's first action in the state court is to except to the process by which it was attempted to give that court jurisdiction of the person of the defendant. And the first action of the defendant after the case reached this court was to interpose that exception here. I am, therefore, constrained to hold that the defendant has not waived the use and service of proper process of summons or citation in
It becomes necessary, then, to consider the other question : Has the defendant been properly served with due process of Bummons or citation in this case ? Service was attempted to be made under the act of the legislature of this state of 1875, "prescribing the mode of service in certain cases,” (Session Acts 1875, p. 170,) by having a certified copy of the petition and a writ called a "citation," directed “to any person residing in Mobile county, Alabama, competent to make oath of the fact of service hereof," served on the defendant by delivering to the president of the defendant company, in said Mobile county, Alabama, said certified copy of petition, and a true copy of said writ, by a person who makes oath that he made said delivery. No affidavit that the defendant was a non-resident was made by any one, and no publication of any writ of citation was made, or any method of service attempted other than that above indicated. But, in the view I feel constrained to take of the question under the authorities, it is wholly immaterial whether the method pursued in this case meets the requirements of the act of 1875, above referred to,
or not. It is clear to my mind that any service, however made, by the authority and power of a court of this state, under the laws of this state, executed in another state, cannot have any greater effect than that pertaining to what is generally styled service by publication. As to the effect within the state where the suit is pending of service by publication of notice or citation to a non-resident party, there appears to be & marked difference of opinion and judgment between the state courts of this state and the courts of the United States. I am not sure that an authoritative decision has been made on this question by the supreme court of this state, but the language of the justices delivering the opinion of that court in Campbell v. Wilson, 6 Texas, 379, and in numerous subse. quent decisions down to and including Wilson y. Zeiglar, 44 Texas, 657, clearly indicates the judges of the supreme court of this state have been of opinion that service by publication of citation, under the statutes of this state, to a non-resident defendant, would authorize such a personal judgment against the defendant as could be enforced by execution against any property of the defendant found in this state, And it is believed that this opinion has been very generally held and acted upon by the legal profession and by the courts of orig. inal jurisdiction in this state. This question came directly before the supreme court of the United States in the case of Pennoyer v. Neff, (95 U. 8.714,) and the judgment of that court in that case, to use the language of Mr. Justice Hunt, as found in his dissenting opinion, “is based upon the theory that the legislature had no power to pass the law in question; that the principle of the statute is vicious, and every proceeding under it void. It (the judgment) therefore affects all like cases, past and future, and in every state." I will not repeat, or attempt to "add to, the reasoning of the opinion of the court as announced by Mr. Justice Field. That decision is conclusive of the question in this court, and on the authority of that case the proceedings by which service was attempted to be had on the defendant in this case are held to be void, and on the grounds above indicated. The motion to quash is sustained. NOTE. See Blair v. Turtle, infra.
1. SUMMONS-SERVICE PROCURED THROUGH FRAUD.
Where a person has been brought from another state by force, or has been induced to come into a state by the fraud and deceit of another for the purpose of procuring the service of a summons in a civil action, and personal service has been made under such circumstances, the service of process and return of the officer will be quashed on proper plea, where the facts are undisputed.
Action for False Imprisonment. Demurer to special plea.
DUNDY, D.J. On the twenty-fifth of October, 1876, the plaintiff, John H. Blair, commenced his action against the defendants, William Turtle and Jesse H. Bull, in the district court of Lancaster county, of the second judicial district of the state of Nebraska. Security for costs of suit was given, whereupon à summons was issued and placed in the hands of the sheriff of the said county for service. The return of the sheriff shows that he made personal service of the summons on both of the said defendants. The sum:nons required the defendants to appear and plead to the petition by the twenty-seventh of November following the date thereof.
The petition seems to show, or at least it is therein alleged, that in the year 1875 the defendants wrongfully and unlaw. fully detained and imprisoned the plaintiff in the common jail of Lancaster county; on the railroad cars running on a railroad extending from Lincoln, Nebraska, to Saint Louis, Missouri; at Saint Louis, Missouri; on railroad cars between Saint Louis and New York city; on board an ocean steamer plying between New York city and Liverpool, England; and also in England after the plaintiff had there arrived,- for which wrongful and unlawful detention and imprisonment the plaintiff claims damages in the sum of $25,000.
Nothing further seems to have been done in the case, at least so far as the pleadings were concerned, until the twen