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THE

244

INSURANCE

LAW JOURNAL.

VOLUME XVI.

NEW YORK:
PUBLISHED BY C. C. HIN E.

:
135 and 137 BROADWAY

1887.

COPYRIGHT, 1887.-C. C. HINE.

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RENDERED IN INSURANCE CASES, IN THE UNITED STATES
SUPREME AND CIRCUIT COURTS, AND IN THE

STATE SUPREME COURTS.

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UNION INS. CO. ET AL.*
Service of a subpæna outside the judicial district is unauthorized and inef-

fective as compulsory process; but since the party may voluntarily appear, and the court thereby acquire the right to proceed with the case, it is not a question of jurisdiction, unless it happen that the plaintiff and defendant are citizens of the same State, or are otherwise wholly disqualified to suo each other in the Federal courts, in which event it does, in those courts, become a matter pertaining to their jurisdiction, to which objection may Decision rendered, August 9, 1886.

VOL. XVI.-1.

be taken in any appropriate and convenient way; the mode being quite

immaterial. But in those cases where the court may proceed upon a voluntary appear

ance, such a service is a mere matter of irregularity, and the proper practice to avoid a waiver thereof is to obtain an order of the court for leave to enter a special appearance with the clerk, upon an undertaking to submit to the further orders of the court, if the objection should not be sustained; and, after such a conditional appearance, to move the court to discharge the service for the irregularity complained of, whatever it may be. The authorities examined, and practice explained. In Equity

Two insurance companies of Pennsylvania and one of Ohio were made defendants to this bill, along with citizens of Tennessee, inhabitants within this judicial district. The subpoena issued against all in the regular form, and was served by the marshal on the resident defendants; and, at the request of plaintiffs' solicitor, he returns that he sent copies of the subpæna and bill to Pennsylvania and Ohio, where the marshals of those districts served them, as they return and certify, upon the non-resident defendants, respectively. Thereupon the two companies belonging to Pennsylvania filed the following paper with the clerk:

The Union Insurance Company and the Insurance Company of the State of Pennsylvania appear by their counsel, Messrs. Heiskell and Heiskell, for the sole purpose of moving the court to quash the return as to said companies, on the ground that it appears on the face of the bill and proceedings that said companies have no residence in the jurisdiction of this court, and no agent within said jurisdiction; and on the ground that the return of the officer in Pennsylvania, adopted by the marshal here, is not effective to bring said companies before this court; and said motion is made accordingly. The appearance is entered for no other purpose than as aforesaid, in order that steps may not be taken against said companies, which are not in any manner before the court, or subject to its jurisdiction.

HEISKELL & HEISKELL, Attorneys. This motion was made to vacate the service and return as irregular and unauthorized by law. The plaintiffs opposed the motion, on the ground that it is a question of jurisdiction, to be presented only by plea, and that this voluntary appearance cures the irregularity, and submits the defendants to the jurisdiction of the court.

HEISKELL & HEISKELL, for the motion.
T. W. BROWN (R. G. BROWN with him), contra.

HAMMOND, J. If the defendants had mistaken their remedy to be rid of this service, in view of the fact that it is apparent that they wish to appear specially, and only to take exception to it, and decline to

submit voluntarily to be made defendants here, I should have no difficulty in permitting them to amend the proceeding so as to accomplish their purpose by whatever method it might be properly done; for no court, in these days at least, ever holds a party to have abandoned or waived a privilege by any act which is done to assert it, if there be power to permit amendment of the proceeding, of which power there can be no doubt under our statute. Rev.St., § 954.

But, as this motion presents the important and recently muchmooted question as to the proper mode, in our Federal equity practice, of taking objection to the service of process, without such a waiver of this privilege as was enforced in Jones vs. Andrews, 10 Wall., 327, I have thought it best to look into it, particularly as I find that the practice of the Federal courts has not been at all uniform, for reasons that will be apparent on reading the cases, and remembering what is said about the peculiarities of the Federal courts, in this matter of taking objections to their jurisdiction, in Rhode Island vs. Massachusetts (12 Pet., 657, 718), which I shall not take space to quote. The jurisdiction of these courts, more than others, is restricted over persons, and to a greater extent formerly than now: Ober vs. Gallagher, 93 U. S., 199, 204. Hence an objection which, in the State practice or that of England, to which our equity rule 90 directs us, would be always a mere matter of irregularity, to be corrected on motion, may become, in the Federal courts, a formidable consideration of jurisdiction, to which exception may be taken by plea, demurrer, motion to dismiss, or by even mere suggestion, and by the court mero mutu, whichever the party pleases to adopt; for there can be no waiver of it under

any circumstances. But this distinction is often overlooked, which, coupled with the general tendency of all courts to disregard mere forms, and get at the thing to be done in any convenient way, has very much confused the practice. However, we can have no trouble in any case if we distinguish between a substantive objection to the jurisdiction, technically considered, and one for simple irregularity in the service of the process; because, as was said in Drummond vs. Drummond (2 Ch. App. Cas., 35), “much confusion has arisen by treating want of power to enforce jurisdiction as tantamount to want of jurisdiction.”

Yet I must say, after a quite careful examination of the English practice, as it existed when our equity rules were adopted and since, that, in my judgment, it was and is competent, even where the denial of power over the person of the defendant goes to the extent of a denial of the jurisdiction of the court itself, to move to discharge

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