Reports of cases argued and determined in the Circuit and District Courts of the United States, for the Sixth Judicial Circuit Volume 2 - Softcover

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This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated.1882 Excerpt: ... Moyoahan v. Wilson. Clark, 41 Barb. 45; Stein v. Volkenhuysen, E. B. & E. 65; Wilson v. Heed, 5 Dutcher, 385; Carpenter v. Spooner, 2 Sand. 917; Prefner v. Rupert, 28 Iowa, 27. Though these were all actions in personam where the defendant was himself discharged, I see no reason why the same principle will not apply to a case of replevin where property is fraudulently decoyed within the jurisdiction of the court. A serious question, however, remains to be considered: Plaintiff insists that filing the petition for removal in the State Court was an appearance, and a waiver of any defect in the service of the writ. That the filing of a petition for a removal is an appearance within the meaning of the judiciary act of 1789 requiring the petition to be filed "at the time of entering his appearance in the State Court" was decided, I think correctly, in Sweeny v. Coffin, 1 Dillon, 73. A like ruling was made by a majority of the court in the case of The Chatham National Bank v. The Merchant's Union Hank, I Hun, 702. While 1 have little doubt that filing this petition is a sufficient appearance to answer the requirements of the judiciary act, my impression is it cannot be considered as a general appearance in the cause. An appearance has been defined to be a submission to the authority of the court in the case, whether coerced or voluntary, or an act importing that the defendant submits the determination of a material question in his case to the judgment of the court. Cooley v. Lawrence, 5 Duer, 610. It has frequently been held that a motion to dismiss a case for want of jurisdiction is not an appearance, the very act of making the motion implying that the party does not submit himself to the authority of the court. Sullivan v. F'razee, 4 Robertson, 616; Decker v. Th...