# Wabash Western Railway v. Brow/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
164 U.S. 271
Wabash Western Railway v. Brow
This was not a proceeding in rem, or quasi in rem, but a personal action brought in the circuit court of Wayne county, Mich., against a corporation which was neither incorporated nor did business, nor had any agent or property, within the state of Michigan; and service of declaration and rule to plead was made on an individual who was not, in any respect, an officer or agent of the corporation. The state court, therefore, acquired no jurisdiction over the person of the defendant by the service. Did the application for removal amount to such an affearance as conceded jurisdiction over the person?
We have already decided that when, in a petition for removal, it is expressed that the defendant appears specially and for the sole purpose of presenting the petition, the application cannot be treated as submitting the defendant to the jurisdiction of the state court for any other purpose. Goldey v. Morning News, 156 U.S. 518, 15 Sup. Ct. 559.
The question 'how far a petition for removal, in general terms, without specifying and restricting the purpose of the defendant's appearance in the state court, might be considered, like a general appearance, as a waiver of any objection to the jurisdiction of the court over the person of the defendant,' was not required to be determined, and was therefore reserved; but we think that the line of reasoning in that case, and in the preceding case of Martin's Adm'r v. Railroad Co., 151 U.S. 673, 14 Sup. Ct. 533, compels the same conclusion on the question as presented in the case before us.
In Goldey v. Morning News, Mr. Justice Gray, speaking for the court, observed: 'The theory that a defendant, by filing in the state court a petition for removal into the circuit court of the United States, necessarily waives the right to insist that for any reason the state court had not acquired jurisdiction of his person, is inconsistent with the terms, as well as with the spirit, of the existing act of congress regulating removals from a court of a state into the circuit court of the United States. The jurisdiction of the circuit court of the United States depends upon the acts passed by congress pursuant to the power conferred upon it by the constitution of the United States, and cannot be enlarged or abridged by any statute of a state. The legislature or the judiciary of a state can neither defeat the right given by a constitutional act of congress to remove a case from a court of the state into the circuit court of the United States, nor limit the effect of such removal. * * * Although the suit must be actually pending in the state court before it can be removed, its removal into the circuit court of the United States does not admit that it was rightfully pending in the state court, or that the defendant could have been compelled to answer therein, but enables the defendant to avail himself, in the circuit court of the United States, of any and every defense duly and seasonably reserved and pleaded to the action, 'in the same manner as if it had been originally commenced in said circuit court." 156 U.S. 523, 525, 15 Sup. Ct. 561, 562.
In Martin's Adm'r v. Railroad Co., referring to the provision of the act of congress of 1887 defining the time of filing a petition for removal in the state court, it was said: 'This provision allows the petition for removal to be filed at or before the time when the defendant is required by the local law or rule of court 'to answer or plead to the declaration or complaint.' These words make no distinction between different kinds of answers or pleas, and all pleas or answers of the defendant, whether in matter of law, by demurrer, or in matter of fact, either by dilatory plea to the jurisdiction of the court, or in suspension or abatement of the particular suit, or by plea in bar of the whole right of action, are said, in the sandard books on pleading, 'to oppose or answer' the declaration or complaint which the defendant is summoned to meet. Steph. Pl. (1st Am. Ed.) 60, 62, 63, 70, 71, 239; Lawes, Pl. 36. The judiciary act of September 24, 1789, c. 20, § 12, required a petition for removal of a case from a state court into the circuit court of the United States to be filed by the defendant 'at the time of entering his appearance in such state court.' 1 Stat. 79. The recent acts of congress have tended more and more to contract the jurisdiction of the courts of the United States, which had been enlarged by intermediate acts, and to restrict it more nearly within the limits of the earlier statutes. Car Co. v. Speck, 113 U.S. 84, 5 Sup. Ct. 374; Smith v. Lyon, 133 U.S. 315, 320, 10 Sup. Ct. 303; In re Pennsylvania Co., 137 U.S. 451, 454, 11 Sup. Ct. 141; Fisk v. Henarie, 142 U.S. 459, 467, 12 Sup. Ct. 207; Shaw v. Mining Co., 145 U.S. 444, 449, 12 Sup. Ct. 935. Construing the provision now in question, having regard to the natural meaning of its lanuguage, and to the history of the legislation upon this subject, the only reasonable inference is that congress contemplated that the petition for removal should be filed in the state court as soon as the defendant was required to make any defense whatever in that court, so that, if the case should be removed, the validity of any and all of his defenses should be tried and determined in the circuit court of the United States.' 151 U.S. 686, 687, 14 Sup. Ct. 538.
Want of jurisdiction over the person is one of these defenses, and to use language of Judge Drummond in Atchison v. Morris, 11 Fed. 582, we regard it as not open to doubt that 'the party has a right to the opinion of the federal court on every question that may arise in the case, not only in relation to the pleadings and merits, but to the service of process; and it would be contrary to the manifest intent of congress to hold that a party who has the right to remove a cause is foreclosed as to any question which the federal court can be called upon, under the law, to decide.'
An appearance which waives the objection of jurisdiction over the person is a voluntary appearance, and this may be effected in many ways, and sometimes may result from the act of the defendant, even when not in fact intended. But the right of the defendant to a removal is a statutory one, and he is obliged to pursue the course pointed out; and, when he confines himself to the enforcement of that right in the manner prescribed, he ought not to be held thereby to have voluntarily waived any other right he possesses. An acknowledged right cannot be forfeited by pursuit of the means the law affords of asserting that right. Bank v. Slocomb, 14 Pet. 65. The statute does not require the removing party to raise the question of jurisdiction over his person in the state court before removing the cause, or to reserve that question in respect of a court which is to lose any power to deal with it; and to decide that the presentation of the petition and bond is a waiver of the objection would be to place a limitation upon the jurisdiction of the circuit court which is wholly inconsistent with the act.
Moreover, the petition does not invoke the aid of the court touching relief only grantable in the exercise of jurisdiction of the person. The statute imposes the duty on the state court, on the filing of the petition and bond, 'to accept such petition and bond and proceed no further in such suit'; and, if the cause be removable, an order of the state court denying the application is ineffectual, for the petitioner may, notwithstanding, file a copy of the record in the circuit court and that court must proceed in the cause.
In this aspect, the conclusion is impossible that the party submits to the jurisdiction of the state court by availing himself of a right to which he is entitled under the act of congress, and which the state court is by that act required to recognize.
It is conceded that, if defendant had stated that it appeared specially for the purpose of making the application, that would have been sufficient; and yet when the purpose for which the applicant comes into the state court is the single purpose of removing the cause, and what he does has no relation to anything else, it is not apparent why he should be called on to repeat that this is his sole purpose; and when removal is had before any step is taken in the case, as the statute provides that 'the cause shall then proceed in the same manner as if it had been originally commenced in said circuit court,' it seems to us that it cannot be successfully denied that every question is open for determination in the circuit court, as we have, indeed, already decided.
The circuit court of appeals held that a petition to remove, without more, was tantamount to a general appearance, but that this result could be avoided by a special appearance accompanying, or made part of, the petition, which would not be waived by, or be inconsistent with, the general appearance, because the application was analogous to an objection to jurisdiction over the subject-matter. We do not concur in this view. By the exercise of the right of removal, the petitioner refuses to permit the state court to deal with the case in any way, because he prefers another forum, to which the law gives him the right to resort. This may be said to challenge the jurisdiction of the state court, in the sense of declining to submit to it, and not necessarily otherwise.
We are of opinion that the filing of a petition for removal does not amount to a general appearance, but to a special appearance only.
Section 12 of the judiciary act of September 24, 1789, c. 20, required the petition for removal to be filed by the defendant 'at the time of entering his appearance in such state court' (1 Stat. 79); and those words were omitted in the act of 1887, though probably the omission is of no special significance. Some cases are referred to, however, which were decided under that section, and have not been followed under the present statute. Pollard v. Dwight, 4 Cranch, 421; Bushnell v. Kennedy, 9 Wall. 387; Sayles v. Insurance Co., 2 Curt. 212, Fed. Cas. No. 12,421. These were all cases of attachment, and of jurisdiction asserted in the state courts through the levy of the writs. The two last cited were satisfactorily disposed of in Goldey v. Morning News.
In Pollard v. Dwight, it appears that the objection that the circuit court had no jurisdiction, 'the plaintiffs being citizens of Massachusetts and Connecticut, and the defendants citizens of Virginia, not found in the district of Connecticut,' was not raised in the circuit court, but for the first time in the assignment of errors after judgment in that court; and it was accordingly held that, 'by appearing to the action, the defendants in the court below placed themselves precisely in the situation in which they would have stood, had process been served upon them, and consequently waived all objections to the nonservice of process.'
The judgment of the circuit court of appeals is reversed. The judgment of the circuit court is also reversed, and the cause remanded to that court, with directions to grant a new trial, sustain the motion to set aside the service of the declaration and rule to plead, and dismiss the action.
Ordered accordingly.
Mr. Justice BREWER and Mr. Justice PECKHAM dissented.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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