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Opinion of the Court.

should be filed in the state court as soon as the defendant was required to make any defence whatever in that court, so that, if the case should be removed, the validity of any and all of his defences should be tried and determined in the Circuit Court of the United States." 151 U. S. 686, 687.

Want of jurisdiction over the person is one of these defences, and, to use language of Judge Drummond in Atchison v. Morris, 11 Fed. Rep. 582, we regard it as not open to doubt that "the party has a right to the opinion of the Federal court on every question that may arise in the case, not only in relation to the pleadings and merits, but to the service of process; and it would be contrary to the manifest intent of Congress to hold that a party, who has the right to remove a cause, is foreclosed as to any question which the Federal court can be called upon, under the law, to decide."

An appearance which waives the objection of jurisdiction over the person is a voluntary appearance, and this may be effected in many ways, and sometimes may result from the act of the defendant even when not in fact intended. But the right of the defendant to a removal is a statutory one, and he is obliged to pursue the course pointed out, and when he confines himself to the enforcement of that right in the manner prescribed, he ought not to be held thereby to have voluntarily waived any other right he possesses. An acknowledged right cannot be forfeited by pursuit of the means the law affords of asserting that right. Bank v. Slocomb, 14 Pet. 60, 65. The statute does not require the removing party to raise the question of jurisdiction over his person in the state court before removing the cause, or to reserve that question in respect of a court which is to lose any power to deal with it; and to decide that the presentation of the petition and bond is a waiver of the objection would be to place a limitation upon the jurisdiction of the Circuit Court, which is wholly inconsistent with the act.

Moreover the petition does not invoke the aid of the court touching relief only grantable in the exercise of jurisdiction of the person. The statute imposes the duty on the state court, on the filing of the petition and bond, "to accept such

Opinion of the Court.

petition and bond and proceed no further in such suit," and, if the cause be removable, an order of the state court denying the application is ineffectual, for the petitioner may, notwithstanding, file a copy of the record in the Circuit Court and that court must proceed in the cause.

In this aspect the conclusion is impossible that the party submits to the jurisdiction of the state court by availing himself of a right to which he is entitled under the act of Congress, and which the state court is by that act required to recognize.

It is conceded that if defendant had stated that it appeared specially for the purpose of making the application, that would have been sufficient; and yet when the purpose for which the applicant comes into the state court is the single purpose of removing the cause, and what he does has no relation to anything else, it is not apparent why he should be called on to repeat that this is his sole purpose; and when removal is had before any step is taken in the case, as the statute provides that "the cause shall then proceed in the same manner as if it had been originally commenced in said Circuit Court," it seems to us that it cannot be successfully denied that every question is open for determination in the Circuit Court, as we have, indeed, already decided.

The Circuit Court of Appeals held that a petition to remove, without more, was tantamount to a general appearance, but that this result could be avoided by a special appearance accompanying, or made part of, the petition, which would not be waived by or be inconsistent with the general appearance because the application was analogous to an objection to jurisdiction over the subject-matter. We do not concur in this view. By the exercise of the right of removal, the petitioner refuses to permit the state court to deal with the case in any way, because he prefers another forum to which the law gives him the right to resort. This may be said to challenge the jurisdiction of the state court, in the sense of declining to submit to it, and not necessarily otherwise.

We are of opinion that the filing of a petition for removal does not amount to a general appearance, but to a special appearance only.

Opinion of the Court.

Section twelve of the Judiciary Act of September 24, 1789, c. 20, required the petition for removal to be filed by the defendant" at the time of entering his appearance in such state court," (1 Stat. 79,) and those words were omitted in the act of 1887, though probably the omission is of no special significance. Some cases are referred to, however, which were decided under that section, and have not been followed under the present statute. Pollard v. Dwight, 4 Cranch, 421; Bushnell v. Kennedy, 9 Wall. 387; Sayles v. Northwestern Insurance Co., 2 Curtis, 212. These were all cases of attachment and of jurisdiction asserted in the state courts through the levy of the writs. The last two cited were satisfactorily disposed of in Goldey v. Morning News.

In Pollard v. Dwight, it appears that the objection that the Circuit Court had no jurisdiction, "the plaintiffs being citizens of Massachusetts and Connecticut, and the defendants citizens of Virginia, not found in the district of Connecticut," was not raised in the Circuit Court, but for the first time in the assignment of errors after judgment in that court, and it was accordingly held that, "by appearing to the action, the defendants in the court below placed themselves precisely in the situation in which they would have stood, had process been served upon them, and consequently waived all objections to the non-ser vice of process."

The judgment of the Circuit Court of Appeals is reversed; the judgment of the Circuit Court is also reversed and the cause remanded to that court with directions to grant a new trial, sustain the motion to set aside the service of the declaration and rule to plead, and dismiss the action.

MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissented.

Opinion of the Court.

NATIONAL ACCIDENT SOCIETY v. SPIRO.

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.

No. 460. Submitted April 27, 1896. - Decided November 30, 1896.

A defendant, by filing a petition in a state court for removal of the cause to the United States court, in general terms, unaccompanied by a plea in abatement, and without specifying or restricting the purpose of his appearance, does not thereby waive objection to the jurisdiction of the court for want of sufficient service of the summons.

THE case is stated in the opinion.

Mr. H. D. McBurney for plaintiff in error.

Mr. Henry H. Ingersoll for defendant in error.

THE CHIEF JUSTICE: This is a certificate from the Circuit Court of Appeals for the Sixth Circuit, propounding, after a preliminary statement, the following question:

"Does a defendant by filing a petition in a state court for removal of the cause to the United States court, in general terms, unaccompanied by a plea in abatement, and without specifying or restricting the purpose of his appearance, thereby waive objection to the jurisdiction of the court for want of sufficient service of the summons?"

For the reasons given and on the authorities cited in the case of Wabash Western Railway v. Brow, ante, 271, the question must be answered in the negative.

Certificate accordingly.

MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissented.

Opinion of the Court.

UNITED STATES v. DELANEY.

APPEAL FROM THE COURT OF CLAIMS.

No. 493. Submitted November 3, 1896. - Decided November 30, 1896.

Doing that which it is necessary to do, in order that a newly created land office may be in a proper and fit condition at the time appointed for opening it for public business, is a part of the official duties of the person who is appointed its register and receiver.

The claimant having entered on the performance of such duties at a new office in Oklahoma on the 18th of July, 1890, and having been engaged in performing them, in the manner described by the court in its opinion, from thence to the 1st of September following, when the office was opened for the transaction of public business, is entitled to compensation as register and receiver during that period.

THE case is stated in the opinion.

Mr. Assistant Attorney General Dodge and Mr. Assistant Attorney Gorman for appellants.

Mr. W. W. Dudley, Mr. L. T. Michener, Mr. John C. Chaney and Mr. J. R. Garrison for appellee.

MR. JUSTICE PECKHAM delivered the opinion of the court.

This is an appeal from the Court of Claims. It involves simply the question as to the right of the appellee to compensation as register and receiver of the land office at the city of Oklahoma, in the Territory of Oklahoma, from the 18th of July to the 1st of September, 1890.

It appears from the findings of fact by the Court of Claims that the land office at Oklahoma city was first established by an executive order of the President on the 6th of June, 1890. The appellee, John C. Delaney, was duly appointed and commissioned as receiver of public moneys at Oklahoma city on the 23d of June, 1890, and on the 7th of July, 1890, he qualified by taking the oath of office and giving the bond required by law. On the 10th of July, 1890, the claimant was verbally directed by the Commissioner of the General Land Office to

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