BElFSNIDER 11. AMERICAN DiP. PUB. CO.
433
RoBERTS 11. CmCAGO,
ST. P., M. & O. Ry.
CO.
(Circuit CO'l.IiTt, D. Minnesota, Third Div1.B1.on. March 8, 1891.) REMOVAL Oll' CAUSES-PRACTICE-REMAND.
Where it appears that the petition for removal was never presented to the state court, but to the clerk thereof, and filed by him, and a certified copy immediately made and given defendant, a motion to remand will be granted.
At LaW. On motion to remand. J. L. McDonald, for plaintiff. Howe Perrin, for defendant. NELsoN, J. This is a motion to remand made by the plaintiff. The correct practice is indicated by Judge GRESHAM in Shedd v. F'uller, 36 Fed. Rep. 609. The petition should be presented to the state court, and opportunity given that court to act. In this case the petition was presented to the clerk of the state court, and filed by him, and a certified copy immediately made and given the defendant. The court never had its attention called to the petition. This is not the proper practice indicated by the statute granting removals from the state court, or recognized by the United States supreme court. Motion to remand granted.
REIFSNIDEB 11. AMERICAN IMP. PUB. CO.
et al.
(Circuit Ccrwrt, E. D. Mi8Bouri, E. D.
March 27, 1891.)
L REllov AL B.
A special appearance merely to file a petition and bond for removal does not preclude the defendant from subsequently moving to quash the service of process.
Oll' CAUSES-ApPEABANCE-SERVICE
of
PROCESS.
FOREIGN CORPORATION-JUBISDICTION.
No jurisdiction of a foreign corporation whlchdoes not maintain an office or transact business within the state is acquired by service of process on the president thereof when he is within the state casually on private business.
At Law. This suit was removed from the state circuit court. Process was served on October 7, 1890, at the city of St. Louis, Mo., by delivering a copy of the writ and petition to D. M. Parry, president of the defendant corporation. On the 20th day of October the corporation appeared specially in the state court for the purpose of removing the cause to this court. Having effected a removal of the cause, it filed in this court a plea in the nature of a motion to quash the service of process upon the corporation. Plaintiff moved to strike the plea from the files. Goo. D. Reynolds, Jitank E. RWhey, and W. M. Ki'1l8C!l, for plaintiff. Jitank, Dawson Garvitn, for defendants. v.45F.no.7 -28
434:
FEDERA.L·BEPORTEB. vol. 45.. .
THAYER, J. The contention that the appearance of the defendant company in the state coul'tfor.the.purpose of:6iUng a:petition and bond for removal was, of necessity, a general appearance, and that the foreign corporation thereby submitted itself to the jurisdiction of'the court, and waived all right to question the legality of the service had upon it, is not It,is true that an appearance for removal under the twelfth section of the judiciary act ofi.1789 was held to have the effect claimed in Sayles v. Insurance 2 Curt. 212; and in Sweeney v. Oolfin, 1 Dill. 73, Judge TREAT held that the filing of a petition and boud for removal was an appearance, within the meaning of the twelfth section of tpe old judiciary act, and that no other appearance W'RS necessary. . But it has been very generally held. under subsequent reniovalacts, that an appearanc,e merely to file and bond for removal not preclude a pattyfrolll subsequently':tnoving to quash the service of process, on the ground 'that the service was or otherwise insufficient' to warrant a judgment: In Atchi86ri v.MO'rfIis;: 11 Fed. Rep';'582, Judge DRUMMOND denied,tbat a' party by removingiaeause to a fedbral court thereby waived biS'rightto question the validity of the service by which jurisdiction had been acquired. "It may have heen," 'says 'JrudgeDRuMMoND, "among othe1'-lfeasons; for the very purpose of objecting-to the service of suminons the defendant ttlqueste& that the cause should be'removed to the federal court, because in a proper case a party has the right to the opinion of the federal court on every question that may arise in thecllse, 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 the act of congress to hold that a party who has a right to remove a cause is foreclosed as to any question which the federal court can be called upon under the law to decide." Judges MCCRARY and'.fREAT ip a case tded in this court (Small v. Montgomery, 17 Fed. Rep'. 865) 'also decided that an appearance for removal is pot a ,waiver of. aJ;lY qbjection .to the removing party was brought into court; and the same point has been ruled and circuits under the removal the same \yay. in several other act of 1875.Vide,I'o,rrott v.lnsurancf! Co., 5 Fed. Rep. 391; Wert/win v. Trust Co., 11 Fed. Rep. 689; Hendrickson'V'. Railway Co., 22 Fed; !(au,ffmdiny.;'J(e'!medy,2fj Fed. 'Rep. 785; .Miner v,, Markham, 28 Fed. Rep. 387; Clew8 v. lrO'n' 44 Fed. Rep. 31. There can be no reaRonable doubt of the defEmdant's right to contest the validity of the service, notwithstanding the fact that it removed the .cause from the state: court. Now. the plea which has been filed inthis court by the defendantoompany to quash the service ,alleges, in substance, that when the writ was served on its president he was in this state casually on private business of his own; that the company is a foreign corporation .of the state of Indiana, and has 'never transacted any business in this ,state, or mlliintained any offiCe, officer, 01' agent or 'employe within' the state. I do, :not understand the state courts tohola that they acquire jurisdiction to render judgmelltagainst a .foreign corporation by a serviCe made under the. circumstances disclosed by the defendant's plea. On the contrary, I understand that service upon an officer or agent of a for-
eo.,
MARTIN '0'. MEYER·.
435
eign corporation is only upheld 8$ eft'ectuaUo bring the corporation into court in where the corporation maintains an office or trans· {l.cts business within the state. McNichol v. Reporting Agency, 74 Mo. 457. The motion to strike th.e plea from the files will be overruled.
MARTIN '11. MEYER
et ale 25, 1891.)
.(Otrcuit Oourt, E. D. Louisiana. February PnTNBRBllJ1'-AcTION AGAINST-J'OINDBR ·OP PARTIES.
Under. the LQuisiana jurisprudence, by which a partnership is a distinct legal entity, capable of being sued when the partners are joined with it, two partners of a commercial partnership domiciled in tha' state may be sued with the partnership on a firlll contract without joining the third, who isa non·resident.
On Exception to Jurisdiction. was an action by James W. Martin, a citizen of MissiBsi ppi, agninst V:& A. Meyer & Co., of Louisiana, a commercial firll1, composed of Victor Meyer,Adolph Meyer, and other persons alleged to be unknown to for a balance alh'ged to be due for goods sold by defendall:ts for the account of plaintiff. Defendants filed an to the jurisdiction, alleging that the firm was composed of Victor, Adolph, and Solomon .Meyer, and that the latter was a citizen of New York; that his name is published in the city directory of New Orleans as a member of the firm, and that plaintiff must have known the fact; but that his name and citizenship ,vas omitted from the petition to prevent thejurisdiction of the courtfl'om being ousted on the face of the pleadings. A jury was waived, and the cause tried before the court. Before PAlmEE and BILLIKGS, J J. lV. S. Benedict, for complainant. Farrar, J0ria8 Kruttschnitt, ·for defendants;.
«
PER CURIAM. The plaintiff, a citizen of Mississippi, on an obligation of the commercial partnership of V. & A. Meyer, domiciled in Louisiana, may sue in this court Victor Meyer, a citizen of Louisiana, Adolph Meyer, a citizen of Louisiana, and the partnership of V. & A. Meyer, so far as the said partnership is capable of being sued and judgment; but cannot sue Solomon Meyer, a citizen of the state of New York. Under the jurisprudence of Louisiana a partnership is a legal and moral entity, a civil person, with peculiar rights, and attributes,' separate and <1istinctfrom the indivi!luals composing the partnership, which can have a domicile, contract and he. contracted with, ,buy and sell, act as agent, and perlarm Dlany other functions; (see ::!mith V. McMicken, 3 La. Ann. 322; Gerson, 32. La. Ann. 532; ::!uccC88iurJ, oj Pilcher, 39 :ya. Ann.. 362, 1 South.. Rep. 929;) and, while not capaqle of suing and being suec! by is.capable of with .the partwith,the partners, and the judgment