# Davidson Bros Marble Company v. United States of America ex rel Gibson/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
213 U.S. 10
Davidson Bros Marble Company v. United States of America ex rel Gibson
Argued: and submitted January 15, 1909. --- Decided: February 23, 1909
The decision of the court below proceeded upon the erroneous assumption that the act of February 24, 1905 (33 Stat. at L. 811, chap. 778, U.S.C.omp. Stat. Supp. 1907, p. 709), was retrospective. That act amended the act of 1894 in several important particulars, which it is not necessary to state, and provided specifically that a suit upon the bond should be brought by one furnishing labor and materials, in the name of the United States, in the circuit court of the United States in the district where the contract with the United States was to be performed, and not elsewhere. As this suit was brought after the passage of the amending act, it was brought in the only district where it could be maintained, if the amending act were retrospective. But it is not retrospective. United States Fidelity & G. Co. v. United States, 209 U.S. 306, 52 L. ed. 804, 28 Sup. Ct. Rep. 537. In this case the contract with and the bond to the United States, and the contract under which Gibson furnished labor and materials, all antedate the passage of the amending act, and the rights of the parties, therefore, must be determined under the act of 1894. An act passed on the same day, August 13, 1894 (28 Stat. at L. 279, chap. 282, U.S.C.omp. Stat. 1901, p. 2315), authorized incorporated surety companies to become sureties on bonds running to the United States, and the 5th section fixed the district in which a suit upon the bond against the surety company should be brought. But nothing was said as to the district where the sureties were individuals, as was the case here. While the act of 1894 authorized a person supplying labor and materials to bring suit upon the bond in the name of the United States, against the contractor and sureties, it did not specify the court in which the suit should be brought, and the omission was not supplied until the enactment of the law of 1905, which, as has been pointed out, is not applicable to this case. The jurisdiction, therefore, of the courts of the United States, must be sought in the general provisions of the statutes relating to that subject. It has been decided that under this statute, for jurisdictional purposes, the United States is the real party plaintiff. United States Fidelity & G. Co. v. United States, 204 U.S. 349, 51 L. ed. 516, 27 Sup. Ct. Rep. 381. We have here, then, a suit in which the United States is plaintiff and three citizens and residents of the state of Illinois are defendants. Obviously, this suit is not a controversy between citizens of different states, and the rules governing where such diversity of citizenship exists have no application. The case is governed by that part of the act of March 3, 1887 [24 Stat. at L. 552, chap. 373], as corrected by the act of August 13, 1888 (25 Stat. at L. 434, chap. 866, U.S.C.omp. Stat. 1901, p. 508), which provides that no civil suit shall be brought before any of the circuit courts of the United States 'against any person by any original process or proceeding in any other district than that whereof he is an inhabitant.' McCormick Harvesting Mach. Co. v. Walthers, 134 U.S. 41, 33 L. ed. 833, 10 Sup. Ct. Rep. 485; Re Keasbey & M. Co. 160 U.S. 221, 40 L. ed. 402, 16 Sup. Ct. Rep. 273; United States v. Southern P. R. Co. 49 Fed. 297, opinion by Mr. Justice Harlan. It follows, therefore, that the court below was without jurisdiction of this cause, and, as the defendants have taken no action whatever in response to the summons, except to appear specially and object to the jurisdiction, it cannot possibly be said that the objection to the jurisdiction has been waived.
The learned judge of the circuit court, however, based his decision upon rule 22 of the circuit court of the United States for the ninth judicial circuit, which is as follows:
'Any party may, without leave of court, appear specially in any action at law or suit in equity for any purpose for which leave to appear could be granted by the court, by stating in the paper which he serves and files that the appearance is special, and that if the purpose for which such special appearance is made shall not be sanctioned or sustained by the court, he will appear generally in the case within the time allowed therefor by law, or by the order of court or by stipulation of the parties.
If such statement be not made as above provided, the appearance shall be deemed and treated as a general appearance.'
The defendants appeared specially and objected to the jurisdiction, but did not state in the appearance that 'if the purpose for which such special appearance is made shall not be sanctioned or sustained by the court,' they 'will appear generally in the case.' Therefore, if the rule is held to be valid, such an appearance must be deemed a general appearance. And so it was decided in the court below.
The rule, as construed and applied in this case, is inconsistent with the laws of the United States, and therefore invalid. Rev. Stat. § 918, U.S.C.omp. Stat. 1901, p. 685. A party who is sued in the wrong district, and does not waive the objection, may of right appear specially and object to the jurisdiction of the court, and, the decision being against his objection, may of right bring the question directly to this court. The rule substantially impairs his right to appeal to this court, a right which is conferred by statute. 26 Stat. at L. 826, chap. 517 U.S.C.omp. Stat. 1901, p. 488. It says to him, you may appear specially and object to the jurisdiction, only upon the condition that you will abide by the decision of a single judge; if that is against you, you must waive your objection and enter a general appearance; if you do not agree to do this, your special appearance will be deemed to be general. We think it was beyond the power of the circuit court to make and enforce a rule which imposes upon defendants such conditions, and transforms an objection to the jurisdiction into a waiver of the objection itself. The jurisdiction of the circuit courts is fixed by statute. In certain cases a defendant may waive an objection to the jurisdiction over his person. But he cannot be compelled to waive the objection if he chooses seasonably to insist upon it, and any rule of court which seeks to compel a waiver is unauthorized by law and invalid. So it has been held that, under the act which requires the practice in the courts of the United States to conform as near as may be to the practice of the courts of the states in which they are held, state statutes which give a special appearance to challenge the jurisdiction the force and effect of a general appearance must not be followed by the courts of the United States. Southern P. Co. v. Denton, 146 U.S. 202, 36 L. ed. 943, 13 Sup. Ct. Rep. 44; Mexican C. R. Co. v. Pinkney, 149 U.S. 194, 37 L. ed. 699, 13 Sup. Ct. Rep. 859; Galveston, H. & S. A. R. Co. v. Gonzales, 151 U.S. 496, 38 L. ed. 248, 14 Sup. Ct. Rep. 401. The reasoning in these cases is pertinent to the case at bar.
To sum up, the circuit court for the northern district of California had no jurisdiction to entertain this suit against these defendants, who are not inhabitants of that district, but, on the contrary, inhabitants of the state of Illinois. The defendants appeared specially, as they had a right to do, solely for the purpose of objecting to the jurisdiction. They were not bound to agree to submit their objection to the final decision of the judge of the circuit court, and the rule of court which treated the special appearance, without such an agreement, as a general appearance, was invalid.
For these reasons the judgment is reversed and the case remanded to the Circuit Court, with instructions to dismiss the action for want of jurisdiction; and it is so ordered.
Mr. Justice McKenna dissents.

## 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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