229 U.S. 31
BIG VEIN COAL COMPANY OF WEST VIRGINIA, Plff. in Err.,
BENJAMIN H. READ.
Argued April 11, 1913.
Decided May 26, 1913.
[229 U.S. 31, 32] Mr. Osborne I. Yellott for plaintiff in error.
Messrs. William L. Rawls, Frank Gosnell, and George Weems Williams for defendant in error.
Mr. Justice Day delivered the opinion of the court:
This case involves the jurisdiction of a circuit court of the United States to issue an order of attachment in a case where no personal service could be had upon the defendant, and wherein there was no personal appearance to the action.
The case was begun in the circuit court of the United [229 U.S. 31, 33] States for the northern district of West Virginia to recover in debt upon certain promissory notes. A summons was issued against the defendant, Benjamin H. Read, trading as Lynah & Read, and return was made by the the marshal that the writ had not been served, as defendant was not found in his district. Thereafter an affidavit was filed for an attachment, setting forth that the defendant was one of the receivers of the circuit court of the United States for the northern district of West Virginia of the property of the Oakland Coal & Coke Company, and that there had been allowed to him for his services as such receiver the sum of $2,000. An order of attachment was issued, and the return of the marshal stated that he had been unable to locate any property in his district upon which to serve the attachment, and accordingly returned the writ, 'No property found.' Afterwards an order was made which, after reciting the beginning of the suit, and that the defendant was a nonresident of West Virginia; that the special master had found the sum of $2,000 due him as such receiver, and that an order of attachment had been issued and placed in the hands of the marshal for the purpose of attaching the estate of the defendant, provided that a copy of the order be served upon the defendant, that he appear before the court, and that a copy of the order served upon the defendant and one Slingluff, special receivers in a suit entitled 'Baltimore Trust & Guaranty Co. v. Oakland Coal & Coke Co.' should be notice to them of the proceedings, and that the claim of the defendant was sought to be attached therein.
A copy of the order was served upon the defendant in Baltimore, Maryland, who thereafter appeared by his counsel for the purpose only of objecting to the jurisdiction of the court, and moved the court to dismiss the suit and quash the attachment upon the following grounds:
Thereafter, the case coming on to be heard, counsel appearing for the defendant for the purpose of objecting to the jurisdiction and for the purpose of the motions filed only, and further moving the court to vacate and set aside the orders issued, and to quash the service of summons in the action, and to dismiss the case, certain facts were found, without prejudice to any motion of the defendant, and without enlarging the appearance of the defendant, as follows:
Afterwards the court delivered an opinion in which the judge directed that the former order, amounting to an attachment, should be set aside, and held that, inasmuch as personal service upon the defendant in the action might yet be obtained by alias summons, he would not then dismiss the action. Later, the plaintiff refused to direct the issuance of alias summons, and upon motion judgment was entered dismissing the action, and a certificate was made by the court.
The certificate states that the judgment complained of in plaintiff's writ of error, which was set out, is based solely upon the ground that the court had no jurisdiction as a [229 U.S. 31, 36] Federal court to grant relief to the plaintiff by subjecting to the claim of the plaintiff the assets and credits of the defendant, to be attached in the case, without personal service of summons upon him, or his voluntary appearance in the cause, and that the motion filed in the case did not constitute a voluntary appearance, and that the court, as a Federal court, had no jurisdiction to grant a personal judgment against the defendant, or to make a final judgment or order, subjecting to the claim of the plaintiff the assets and credits of the defendant so sought to be attached.
The attachment was sought to be levied and was claimed to be authorized under the act of June 1, 1872 (17 Stat. at L. 196, chap. 255), now 915 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 684). It is as follows:
Assuming that the attachment could be issued under the laws of West Virginia, under this statute was there authority in the courts of the United States to issue the attachment, it appearing that no service had been or could be made upon the defendant, and that he had not appeared in the action?
Section 915 was before this court in Ex parte Des Moines R. Co. 103 U.S. 794 , 26 L. ed. 461, and it was held that as, under 739 of the Revised Statutes, act of March 3, 1875 (18 [229 U.S. 31, 37] Stat. at L. 470, chap. 137, U. S. Comp. Stat. 1901, p. 508), then in force, no civil action, not local in its nature, could be brought against anyone by original process in any United States circuit court other than that for the state of which he was an inhabitant or in which he was found at the time of serving the writ, an attachment could not be issued, the defendant being a nonresident, and not having been served with process. It was further held that an attachment was but an incident to a suit, and unless the suit could be maintained the attachment must fall. In other words, in cases where the defendant could not be sued and jurisdiction acquired over him personally, the auxiliary remedy by attachment could not be had, as attachment was not a means of acquiring jurisdiction. The same view was taken in Nazro v. Cragin, 3 Dill. 474, Fed. Cas. No. 10,062, by Mr. Justice Miller, on the circuit. Ex parte Des Moines R. Co. supra, was but an affirmance, as to the right of attachment where no personal service could be had, of the former case of Toland v. Sprague, 12 Pet. 300, 9 L. ed. 1093, wherein it was held that a person was not amenable to attachment against his property except where process could be served upon his person.
It is contended, however, that since the act of March 3, 1887, [24 Stat. at L. 552, chap. 373], as amended August 13, 1888 (25 Stat. at L. 433, chap. 866, U. S. Comp. Stat. 1901, p. 508), the right of attachment should be held to exist in cases like the present. The statute of 1888 provides:
The argument is that the right to issue an attachment under the act of 1872 should obtain, since the law now permits suit in the district of the residence either of the [229 U.S. 31, 38] plaintiff or defendant, omitting the provision of the act of 1875, that the defendant could be sued only in the district in which he was an inhabitant or could be found at the time of commencing the proceeding. But we are of the opinion that this amendment to the statute was not intended to do away with the settled rule that, in order to issue an attachment, the defendant must be subject to personal service, or voluntarily appear in the action. If Congress had intended any such radical change, it would have been easy to have made provision for that purpose, and doubtless a method of service by publication in such cases would have been provided. We think the rule has not been changed; that an attachment is still but an incident to a suit, and that, unless jurisdiction can be obtained over the defendant, his estate cannot be attached in a Federal court. See Laborde v. Ubarri, 214 U.S. 173 , 53 L. ed. 955, 29 Sup. Ct. Rep. 552; United States v. Brooke, 184 Fed. 341.
Another contention is that the defendant, in appearing for the purpose of the motion submitting to the court the question of the right to attach his compensation as receiver in the court, had voluntarily submitted to the jurisdiction of the court; but we are of the opinion that this contention is untenable. It is the settled practice in the Federal courts that an appearance may be made for the sole purpose of raising jurisdictional questions, without thereby submitting to the jurisdiction of the court over the action. Goldey v. Morning News, 156 U.S. 518 , 39 L. ed. 517, 15 Sup. Ct. Rep. 559; Shaw v. Quincy Min. Co. 145 U.S. 444, 453 , 36 S. L. ed. 768, 772, 12 Sup. Ct. Rep. 935.
It is true that where the defendant appears by motion and objects to the jurisdiction, and also submits a question going to the merits of the action, it being one of which the court had jurisdiction, there is a general appearance in the case which gives jurisdiction, as in St. Louis & S. F. R. Co. v. McBride, 141 U.S. 127 , 35 L. ed. 659, 11 Sup. Ct. Rep. 982, where a demurrer was interposed raising two grounds of jurisdiction, and the third going to the merits of the cause of action, and it was held [229 U.S. 31, 39] that there had been a submission to the jurisdiction of the court. See also Western Loan & Sav. Co. v. Butte & B. Consol. Min. Co. 210 U.S. 368 , 52 L. ed. 1101, 28 Sup. Ct. Rep. 720.
In this case, however, the submission was not of any question involving the merits of the suit, but of one with reference to the jurisdiction of the court to issue the attachment; adding the further ground that the property in question was not subject to attachment or garnishment. No issue was made involving the merits of the action. This special appearance was sufficient to raise the question of jurisdiction only. Davis v. Cleveland, C. C. & St. L. R. Co. 217 U.S. 157 , 54 L. ed. 708, 27 L.R.A.(N.S.) 823, 30 Sup. Ct. Rep. 463, 18 Ann. Cas. 907.
In our opinion the Circuit Court did not err in holding that it had no jurisdiction to issue the attachment in this case.