Mahr v. Union Pac. R. Co.

Citations

• 140 F. 921

Syllabus

<p>1. Appearance — Objection to Jurisdiction — Motion Constituting General Appearance.</p> <p>The right to make a special appearance is not a substantial one inherently existing, but is a privilege allowed by practice, and must be exercised within the rules of procedure. Whenever a litigant appears to deny jurisdiction over his person, which would exist but for the failure to pursue the methods prescribed by law for bringing him into court, he must confine himself to that particular branch of jurisdiction, and if in his motion he also challenges the jurisdiction of the court over the subject-matter of the action he waives the want of service and enters a general appearance, notwithstanding any words of limitation in his motion.</p> <p>[Ed. Note. — For cases in point, see vol. 3, Cent. Dig. Appearance, §§ 42, 43.]</p> <p>2. Same — District of Suit — Waiver op Objection.</p> <p>The right of a defendant, in' a federal court to be sued in the district of his residence is one which he may waive, and which is waived by a general appearance.</p> <p>[Ed. Note. — For cases in point, see vol. 3, Cent. Dig. Appearance, § 114.</p> <p>Waiver of right as to district in which suit may be brought, see note to Memphis Sav. Bank v. Houchens, 52 C. C. A. 192.]</p> <p>3. Same — Objection to Jurisdiction — Motion Constituting General Appearance.</p> <p>An averment, in a motion by a defendant to quash the service, that the subject-matter of the action “was not and never has been and is not now within said state” where the action is brought, is equivalent to a demurrer that “the court has no jurisdiction of the subject-matter of the action,” under Ballinger’s Ann. Codes & St. § 4907, and the filing of such motion in a federal court in that state constitutes a general appearance.</p> <p>4. Courts — Rules of Court.</p> <p>The provision of rule 22 of the Circuit Court of the Ninth circuit that any party appearing specially shall state in the paper which he serves and files that the appearanc