Peterson v. Morris

98 F. 48, 1899 U.S. App. LEXIS 3368

• Court: U.S. Circuit Court for the Northern District of Illnois
• Decided: November 25, 1899
• Docket: No. 25,001
• Status: Published

Opinion

KOHLSAAT, District Judge.

Under authority of Railway Co. v. Brow, 164 U. S. 271, 17 Sup. Ct. 126, 41 L. Ed. 431, the filing of a petition in the state court for removal to the federal court, without specially limiting the appearance for such purpose, does not amount to a general appearance. Page 279, 164 U. S., page 128, 17 Sup. Ct., and page 434, 41 L. Ed. The effect is the same with or without limiting by words the nature of the appearance. The motion of defendants for an order that the plea in abatement stand as a motion to quash is granted. Benton v. McIntosh (C. C.) 96 Fed. 132, decided by this court on May 27, 1899.

The question then remains as to whether or not the motion made by defendants that plaintiffs file a bond for costs in this court is such a general appearance as will preclude defendants from relying upon improper service of process. Such a motion does not affect the merits of the controversy. It is simply a means for protecting defendants in the recovery of their costs already incurred, and which have not extended beyond those incidental to removal. It would have been better practice to limit the appearance in such a motion, but I hold that, from the nature of the motion, it is not such a one as precludes defendants from relying upon their motion, which was taken by plea in abatement in the state court, and has been ordered, as above, to stand as a motion to quash the service in this court. The motion to quash may be heard upon sustaining affidavits filed within 10 days, and affidavits in opposition to such motion to be filed within 10 days thereafter.