Wyatt Easterling, Currie Amis and J.H. Mitchell, of La Feria, Texas, for appellants.
The appearance of the corporation in the state court for the purpose of presenting its petition for removal, whether that appearance was specifically limited to the special purpose aforesaid or not specifically so limited, did not have the effect of a general appearance, or constitute a waiver of the corporation's right to have the process quashed. The leading case upholding this rule is Wabash Etc. Ry. Co. v. Brow, 164 U.S. 271 , 17 S.Ct. 126. See, also, Macario v. Alaska Gastinear Mining Co. (Wash.), 165 P. 73. We may assume that there can now be no question that the United States district court possessed full jurisdiction of the case at the time the corporation moved to quash the process. If so, under the rule above announced, its quashal of this process and dismissal of the corporation out of the suit was, as to the corporation, a final decree entered by a court having jurisdiction, and should be determinative of the question here discussed. Sec. 37, Judicial Code, sec. 80, Title, 28 U.S. Revised Statutes.
If the petition and proceedings for removal were regular on their face, then the United States district court acquired jurisdiction and having such jurisdiction, all of its orders and acts are legal and valid, until by amendment, dismissal, quashing of citation or otherwise, the federal question is eliminated, or the removing defendant of diverse citizenship from plaintiff is dismissed out of the suit. In that event, if a controversy still exists between the parties to the suit, the federal court has ceased to have jurisdiction, and its duty is to remand. When a remand takes place under such circumstances,
the orders of the federal court made while it had lawful jurisdiction, cannot be considered null, and full force must be given to them. This is easily seen in the case of an amended pleading removing the federal question. When the case goes back to the state court, it naturally and necessarily goes back as a case between the parties on the cause of action set up in that amended pleading. So, if there has been a settlement with the removing defendant whereby the federal question is eliminated, the case goes back to the state court as between the remaining parties, and certainly it could not be contended that the plaintiff would be entitled to take judgment by default or otherwise against the defendant with whom he has made the settlement. So, in the case of a dismissal as to the removing defendant, either as a result of quashing process or by plaintiff's voluntary action confirmed by order of the court to that effect, that defendant is definitely and finally out of the case. If, after remand, the plaintiff desires to bring him back into the case, he would undoubtedly have the right to do so, but only upon new process and perhaps new pleadings. To hold otherwise would be to hold that the lawful orders entered by a court while it had jurisdiction under the removal statute, can be set aside without proceedings or notice of any kind, and, indeed, do not need to be set aside because, though legal, they are void. The only conceivable rule, and the one in consonance with all cases available, is that the orders remain in force on remand, if the federal court had jurisdiction at the time it made them until such time as such orders may be by proper proceedings set aside.
In the line of cases holding that after remand a judgment by default may be taken in the state court against the removing defendant who had not filed an answer in that court, the decisions have been uniformly based on the ground that the federal court had never acquired jurisdiction because the case had been improperly removed
to that court, and that the attempt at removal would not excuse the defendant from filing his answer in the state court in view of that fact. See Morbeck v. Bradford-Kennedy Co. (Idaho), 113 P. 89, and the cases there cited and quoted from, in which the courts again and again emphasize the point that the allowance of the default was based solely on the fact that the federal court has acted without jurisdiction and that the case has never been legally and regularly removed from the state court, and that the case had never been properly removed from the circuit court. As said in the Morbeck case, "Had it turned out that the removal was properly made and that the defendants had made the proper showing for removal, there would have been no question about a default in the federal court. On the other hand, when it turned out that the defendants had never brought themselves within the federal statute authorizing the removal it necessarily followed that they were subject to the practice and procedure prescribed by the state laws governing the action. The case was in point of both fact and law one of which the federal court had no jurisdiction, and so the jurisdiction was never transferred, except inso far as it was necessary for the federal court to decide the sole question of jurisdiction." These cases will repay careful reading, and will demonstrate the proposition that they, and all the cases above cited, are entirely consistent, and that the basic question is always whether the federal court did or did not possess jurisdiction at the time when it made the orders, rulings, etc., in question.
Bozeman Cameron, for appellant Rush.
We desire to present only one question: Whether there is sufficient jurisdiction of the person of the main defendant, Al Parker Securities Company, to support any decree against the garnishee defendant?
It is not contended by appellee that the chancery attachment statute was followed in respect to publication. Reliance is placed solely on the proposition that the main defendant below entered its appearance, thus dispensing with the necessity of publication. Filing of petition for removal is not a general entry of appearance. This proposition has been already discussed, but we desire to advert to it briefly, because of a recent decision of this court on which we assume chief reliance is placed by our adversaries. We refer to Britton v. Beltzhoover, 147 Miss. 737 , 113 So. 346 . A casual reading of that case would lead to the conclusion that the general principles announced were susceptible of this construction. A close study of the case, however, will show that it was not the intention of the court to hold that the mere filing of a petition to remove a case from the state court was a general entry of appearance in the state court. There are two essential differences between the case there presented and the one here before the court. (1) The defendant there filed a motion for time in which to plead and, (2) the petition for removal was there granted. We submit that it was not the purpose of this court to align itself with that small group of states in which it has been held that the filing of a petition to remove is a general appearance. Particularly do we urge this, in view of the strong stand taken by the vast majority of the states and the supreme court of the United States. See Railway Co. v. Brow, 164 U.S. 271 , 41 L.Ed. 431; Clark v. Wells, 203 U.S. 164 , 51 L.Ed. 138; Commercial, etc., Co. v. Davis, 213 U.S. 245 , 53 L.Ed. 782; McLaughlin v. Hallowell, 228 U.S. 278 , 57 L.Ed. 835; Hassler v. Shaw, 271 U.S. 195 , 70 L.Ed. 900. It is clear that the court in Britton v. Beltzhoover, meant to hold only that under the facts of that case — involving a motion for time in which to plead, followed by petition for removal and order overruling same — there had been a general entry of appearance. We submit, further that the holding would not be
authority for deciding that in this case the main defendant entered its appearance generally.
The order discharging the main defendant put it out of court finally. Particularly is this conclusion correct in the light of what transpired after the filing of the petition to remove. It will be recalled that the state court duly considered the petition to remove and it was allowed. Thereafter the federal court, after due argument, overruled a motion to remand and assumed jurisdiction of the case. It then quashed the alleged personal service of process on the main defendant and discharged the said main defendant "without day." Under those circumstances we submit that the main defendant was justified in totally ignoring the proceeding from there on. A court having acquired actual jurisdiction of the subject-matter had entered a final judgment in its favor until further process should be served and its connection with the transaction could properly be considered closed. We submit, therefore, that the contentions made by counsel for the other garnishees that this whole proceeding must fall for want of any service on, or entry of appearance by, the main defendant is sound.
Baskin, Wilbourn Miller and L.P. Spinks, for appellee.
Was the chancery court of Kemper county, Mississippi, deprived of jurisdiction of the main defendant, the Al Parker Securities Company, and is the decree against the said main defendant void, thereby rendering the decrees against the appellants void? It would be an extremely anomalous situation, if, when sued in the courts of Mississippi, in a proceeding of this nature, a nonresident corporation could appear, become an actor in our court, cause the case to be improperly removed to the federal court, there quash the service of personal process upon it, and go free.
This is a proceeding in rem, whereby and wherein the debts of the resident defendants to the nonresident defendant are sought to be subjected to the payment of the Al Parker Securities Company's debt to appellee. Regardless of the service of process upon the defendant, The Al Parker Securities Company, and no matter whether publication had or had not been made for such company in the state court, had the federal court retained jurisdiction of the suit, it could have, it should have, and it would have proceeded in rem to subject the indebtedness of the resident defendants to the nonresident defendants to the payment of the company's debt to the appellee. The removal of the case to the federal court in no way affected the lien obtained upon the indebtednesses of the resident defendants to the nonresident defendant. Sec. 36, Judicial Code; Pere Marquette v. Western Heater Dispatch, 284 Fed. 574; Clark v. Wells, 203 U.S. 164 , 51 L.Ed. 138; Davis v. C.C. St. L. Ry., 217 U.S. 174 , 54 L.Ed. 718.
It was on the authority of these decisions that the United States district judge, while the case was in the federal court, granted a decree pro confesso in rem against the defendant, the Al Parker Securities Company, and appointed a master to ascertain and report the amount of the indebtedness due by the resident defendants to the nonresident defendant. It is manifest, therefore, under the federal decisions that this appellee did not lose the right, by the removal and the quashing of the process by the federal court, to proceed in rem to condemn the indebtedness due by the resident defendants to the nonresident defendant. It is also manifest that the supreme court of the United States treated the petition for the removal at least as a qualified appearance, sufficient to show full notice of the pendency of the attachment proceeding in rem and sufficient to support the jurisdiction of the federal court in rem.
Therefore, the federal court after quashing the process, had under
these decisions the right, without further process or publication, to proceed to judgment in rem as seems clear. Then, taking the case most strongly in favor of the appellants and of the nonresident defendant, the Al Parker Securities Company, surely on the remanding of the case to the state court by the federal court, after it had determined finally that the case was improperly removed to the federal court, it should be held that the nonresident defendant had sufficient notice of the pendency of the proceeding in rem to justify and authorize the state court to render a decree condemning the indebtednesses.
If under such facts as are set forth in the decisions of the United States supreme court, above cited, that court declined to kick the appellee out of court and entertained jurisdiction in rem, on the theory that the petition for removal filed in the state court conclusively showed that the nonresident defendant had sufficient notice of the pendency of the proceeding, then surely the state court would give that much effect to the petition to remove and uphold the judgments of the lower court against these appellants, regardless of whether or not the service of process in the state court was sufficient, regardless of whether or not publication was made in the state court, and regardless of whether or not the petition to remove should be regarded under our state practice as an entry of appearance in the state court. See Anderson v. Miller, 8 S. M. 421; Bates v. Strickland, 103 So. 432 ; Maloney Co. v. Tatum,
99 So. 129; Lee v. McConnell (Miss.), 69 So. 706; Reddus v. Wofford, 4 S. M. 579; Loughridge Bogan v. Bowland, 52 Miss. 546 .
The entry of appearance by The Al Parker Securities Company in the state court for the purpose of removal to the federal court, under the facts set forth in this record, and under the law and decisions of the state of Mississippi with reference to the subject of general appearance, amounted to the entry of a general appearance in the case in the state court and subjected the defendant,
The Al Parker Securities Company to a judgment in personam
against it for failure thereafter to plead further. The effect of the appearance of The Al Parker Securities Company in the state court in the abortive effort to remove the case to the United States district court as an appearance in personam, is to be determined by the courts of this state in accordance with the statutes and decisions of this state. This court is not bound by the decisions of the federal courts on the question, but may and should determine the question for itself.
In Britton v. Beltzhoover, 147 Miss. 737 , 113 So. 346 , the court held that the appearance in an effort to remove the case to the federal court was sufficient of itself alone to uphold the jurisdiction of the state court to dispose of the attachment issue there involved. See, also, Farmer v. Insurance Co., 138 N.Y. 265 , 33 N.E. 1075 ; State v. Sale, 132 S.W. 1119; Larsen v. Allen, 37 Wn. 555 , 80 P. 181; Union Iron Co.
v. Sonnefield (La.), 37 So. 20; Redus v. State, 54 Miss. 712 ; Frisby v. Harrison, 30 Miss. 452 ; Claughton v. Black, 24 Miss. 185 ; Harrison v. Groin, 18 Miss. 563 ; Standard Oil Co. v. State, 65 So. 468; I.C. Ry. Co. v. Swanson, 92 Miss. 485 , 46 So. 83; Fisher v. Battaile, 31 Miss. 471 ; Antoni v. Greenhow, 27 L.Ed. 468; York v. Texas, 34 L.Ed. 604; Coffman v. Wooters, 34 L.Ed. 962.
Argued orally by J.H. Mitchell, for appellant, and R.E. Wilbourn, for appellee.