11

15

tion. A subpoena will not be set aside because addressed to a non-resident over whom the court could exercise jurisdiction with his consent, but not otherwise, although the service upon him might be set aside.12 Before the Equity Rules of 1912, it was held that the objection could not be joined with an answer to the merits.13 A plea in abatement, which denied that the person served "is" an agent or officer of the corporation, was held to be insufficient; since it did not negative the fact that he was such an agent on the date of service.14 Under the former practice, it was held that a plea to the jurisdiction did not raise the question that the stenographer in the employ of defendant transacting business within the State was not the proper person upon whom service should be made.1 It has been held that upon a motion to set aside service upon a foreign corporation because the writ was not served upon the proper person, the defendant need not show upon whom the service should be made or that it has no agent in the district.16 A motion to set aside the service, made six weeks after the service, was held not to be barred by laches.17 Where such a motion had been made and denied in the State court, and no appeal taken from the decision, it was held that it could not be renewed in the Federal Court after a removal, 18 although after a removal the motion may be made for the first time in the Federal Court.19 It has been said that whether a foreign corporation is conducting business within the State and is liable to service therein, is primarily a question of fact.20 Letterheads of defendant which describe a person as one of its officers are presumptive evidence of his

11 United Autographic Register Co. v. Egry Register Co., 219 Fed. 637.

12 Mason v. N. Y. Steam Power Co., 87 Fed. 241.

13 Peper Automobile Co. v. Am. Motor Car Sales Co., 180 Fed. 245. See Chadeloid Chemical Co. v. Chicago Wood Finishing Co., 180 Fed. 770.

14 Scott v. Stockholders' Oil Co., 129 Fed. 615.

15 Chadeloid Chemical Co. v. Chi

cago Wood Finishing Co., 180 Fed. 770.

16 Wall v. Chesapeake & O. Ry. Co., C. C. A., 95 Fed. 398, Ward, J., dissenting.

17 Phelps v. Connecticut Co., 188 Fed. 765.

18 Hoyt v. Ogden Portland Cement Co., 185 Fed. 889.

19 Goldey v. Morning News, 156 U. S. 518.

20 See Peper v. Am. Motor Car Sales Co., 233 Fed. 245.

official capacity.21 This question may be referred to a master.22 A corporation is not entitled to a trial by jury of the questions whether it was transacting business within the State and whether the person upon whom service was made was its authorized representative.23 Where upon a motion to quash service of process it appeared that the foreign corporation transacted business within the State; the court on setting aside the service authorized the issue of process to be served upon the proper agent.24 In one case such a motion was granted without prejudice to the right of the complainant to apply for leave to amend his complaint by stating the facts relating to the presence of property within the district and his claim against the same, which brought the case within the statute.2

21 Kirby v. Louismann-Capen Co., 221 Fed. 267.

22 Ryan v. Ohmer, 233 Fed. 165. 23 Peper Automobile Co. v. Am. Motor Car Sales Co., 180 Fed. 245.

25

CHAPTER VII.

APPEARANCE.

§ 168. Definition of an appearance. An appearance is the process by which a defendant submits himself to the jurisdiction of the court. An appearance is either general or special. By a general appearance a defendant appears for all purposes in the suit. By a special appearance he appears solely for the purpose of objecting to the jurisdiction on account of a defect, an omission, or an irregularity in the service of the subpoena upon him, or perhaps for some other jurisdictional defect. An appearance gratis is an appearance by a defendant who has not been served with process.2

Upon the former practice, a formal appearance was required. The Equity Rules of 1912 make no provision for an appearance other than such as is implied by the law from the filing of an

answer.

§ 169. What constitutes an appearance. The formal method of entering an appearance is to deliver to the clerk a præcipe, that is, a written direction, ordering him to enter the appearance of the defendant who subscribes it.1

A defendant may appear in person 2 or by his attorney. It is presumed that an attorney has authority from the party for whom he appears.3 3 It has been held to be too late for the

§ 168. 1 National F. Co. v. Moline Malleable I. Works, 18 Fed. 863; Elliott v. Lawhead, 43 Ohio St. 171; Dorr v. Gibboney, 3 Hughes, 382; U. S. v. Am. B. T. Co., 29 Fed. 17.

2 Daniell's Ch. Pr. (2d Am. ed.) 590-595.

8 Eq. Rule 17 of 1841. § 169. 1 Daniell's Ch. Pr. (2d Am. ed.) 590, 591.

2 U. S. R. S. § 747.

3 Cooper v. Jewett, C. C. A., 233 Fed. 618. The president of a corporation who under its by-laws is its general executive official has power to employ counsel to defend an action against it although he is not directed by the directors to employ counsel or appear, unless he is forbidden by them to do so. Blue Goose Min. Co. v. Northern Light Mining Co., C. C. A., 245 Fed. 727.

defendant after joining issue to question the authority of plaintiff's attorney to appear. No attorney-at-law can appear in a court of the United States unless authorized by a power of attorney, if he is not a member of the bar of such court. The rules as to admission to the bar of the District and Circuit courts vary with the different courts. It is the usual practice to recognize in each District and Circuit Court of Appeals a member of the bar of the Supreme Court of the United States as a member of the bar of such inferior court without requiring any formal order or motion for his admission.6 The Circuit Courts of the United States for the Southern District of New York and the district of New Jersey have in one or more cases refused to recognize members of the bar of the Supreme Court of the United States who had not been admitted to practice there. The taking of any proceeding other than a special appearance and a motion or plea founded thereupon, is equivalent to a general appearance and a submission of the defendant's person to the jurisdiction of the court. Such is a motion to dismiss the case upon the merits although coupled with a special appearance and an application for a dismissal for defective service or lack of residence within the district.10 Such a motion when oral and not in writing

4 Rouiller v. A. & B. Schuster Co., 212 Fed. 348.

5 Ex parte N. K. Fairbank Co., 194 Fed. 978; Matter of Joseph Wood, S. D. N. Y., explained infra, sections on "Habeas Corpus." It has been held that the court may admit an attorney to practice nunc pro tunc so as to validate a writ in the Federal court which he had previously obtained. Jewett v. Garrett, 47 Fed. 625.

6 See Goodyear D. V. Co. v. Osgood, 13 Off. Gaz. 325.

7 See Matter of Joseph Wood infra, §§ 466, 467.

8 Rouiller v. A. & B. Schuster Co., 212 Fed. 348.

New Jersey v. New York, 6 Pet. 323; Van Antwerp v. Hulburt, 7 Blatchf. 426, 440; Livingston ▼. Gibbons, 4 J. Ch. (N. Y.), 94; Fed. Prac. Vol. I-62

Blackburn v. Selma, M. & M. R. Co., 2 Flippin, 525; Fitzgerald & M. Const. Co. v. Fitzgerald, 137 U. S. 98, 34 L. ed. 608; infra, § 170.

10 Thames & Mersey Ins. Co. v. U. S., 237 U. S. 19; Marian Coal Co. v. Peale, C. C. A., 204 Fed. 161; Adler Goldman Commission Co. v. Williams, 211 Fed. 530; Lively v. Picton, 218 Fed. 401; Western Union Tel. Co. v. Louisville & N. R. Co., 229 Fed. 234; Lehigh Valley Coal Co. v. Washko, C. C. A., 2nd Ct., 231 Fed. 42; Everett Ry. Light & Power Co. v. U. S., 236 Fed. 806; M'Lean Lumber Co. v. U. S., 237 Fed. 460; Moore Filter Co. V. Taugher, C. C. A., 239 Fed. 105; Morris Land & Cattle Co. v. Kilpatrick, C. C. A., 256 Fed. 788. But see Ex parte Indiana Transp. Co., 244 U. S. 436.

13

constitutes a general appearance.11 So is an answer to the merits, although accompanied by a special appearance, 12 at least when the answer does not formally object to the jurisdiction.1 So it has been held are: a special appearance accompanied by a motion to set aside an order reviving a judgment upon the ground of an irregularity in the proceedings; 14 obtaining a stay of proceedings pending a motion to vacate a judgment.15 A motion to make the complaint more definite and certain.16 A petition of intervention, even where the petitioner disclaims any intention to be made a party.17 Opposition to a motion for a preliminary injunction. 18 Opposition on the merits to a motion to punish for contempt.19 The filing of a pleading before the court has passed upon the question of jurisdiction,20 even when filed pending the decision of a motion to set aside the service of process, 21 at least when such pleading does not specifically take that objection, 22 and a motion to set aside the service because of want of jurisdiction over both the person and the subjectmatter.28

11 Everett Ry. Light & Power Co. v. U. S., 236 Fed. 806; Budris v. Consolidation Coal Co., 251 Fed. 673.

12 Caskey v. Chenoweth, C. C. A., 62 Fed. 712. See Texas & Pac. Ry. Co. v. Saunders, 151 U. S. 105, 38 L. ed. 90; Hankinson v. Page, 31 Fed. 184. See Morris Land & Cattle Co. v. Kilpatrick, C. C. A., 256 Fed. 788.

18 Wood v. Wilbert, 226 U. S. 384, 57 L. ed..

14 Crawford v. Foster, 84 Fed. 939.

15 Crane v. Penny, 2 Fed. 187. 16 Case v. Mountain Timber Co., 210 Fed. 565; Commonwealth Cotton Oil Co. v. Hudson (Oklahoma, 1916), 155 Pac. 577. Contra, Valentine v. Myers, 36 Hun (N. Y), 201. Columbia Law Review, June 1916.

17 Bowdoin College v. Merritt, 59 Fed. 6; Jack v. D. M. & Ft. D. R. Co., 49 Iowa, 627; Frank v. Wedderin, C. C. A., 68 Fed. 818.

18 Twin Lakes Land & Water Co. v. Dohner, C. C. A., 242 Fed. 399; Great Lakes & St. Lawrence Transp. Co. v. Scranton, C. C. A., 239 Fed. 603.

19 Bradstreet Co. v. Bradstreet's Collection Bureau, C. C. A., 249 Fed. 958.

20 Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593, 36 L. ed. 829.

21 Barnes v. W. U. Tel. Co., 120 Fed. 550; Perkins v. Hayward, 132 Ind. 95, 31 N. E. 670; Cf. Wetzel & T. Ry. Co. v. Tennis Bros. Co., C. C. A., 145 Fed. 458. But see Wheeler v. Wilkins, 19 Mich. 78.

22 See Eq. Rule 79; Wood v. Wilbert, 226 U. S. 384, 57 L. ed. As to moving to set aside an order appointing a receiver, see Lively v. Picton, 218 Fed. 401.

28 Mahr v. Union Pac. R. Co., 140 Fed. 921.