Lowitz v. Kimmerle

Citations

• 221 F. 857
• 137 C.C.A. 415
• 1915 U.S. App. LEXIS 1377

Syllabus

<p>1. Removal of Causes <@=>97—Service of Process—Attachment.</p> <p>Under Comp. Laws Mich. 1897, § 10572, providing that if it appear by the return of a writ of attachment that any property has been attached and that neither of the defendants can be found plaintiff shall, within 30 days unless defendants sooner appear in the suit, cause a notice to be published, which notice shall state the names of the parties, etc., and shall be published for six consecutive weeks, and that if plaintiff shall neglect to cause such notice to be so published the attachment shall he dismissed, where on the day the writ was returned defendant appeared specially by petition to remove the cause to the federal court, but the attachment notice entitled in the state court was thereafter published and the case was not certified to the federal court until after such publication was made and the proof of publication had been filed, a motion to sot aside the service of the writ of attachment was properly denied; a.s, though the ease was not pending in the state court after the filing of the petition for removal, the publication of the notice was not a court proceeding, but was wholly ministerial and extrajudicial, and if plaintiff could not give the statutory notice of attachment until the case was docketed in the federal court defendant might defeat the suit by delaying the petition to remove, while due publication was running, until after the 30 days for the first publication had expired.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 206, 208-211: Dec. Dig. <@=>97. J</p> <p>2. Appearance <@=>24—Removal of Causes <@=>112—Special Appearance— Jurisdiction Acquired.</p> <p>A special appearance by defendant for the purpose of removing a cause to the federal court did not operate to submit his person to the jurisdiction of the state court or deprive him of the right to object to the sufficiency of the service prior to such appearance.</p> <p>IEd. Note.—For other cases, s