JOHN W. CAIN, Plff. in Err., v. COMMERCIAL PUBLISHING COMPANY.

Action for libel brought in the circuit court of Hinds county, first district, state of Mississippi. Plaintiff in error (as he was plaintiff in the action, we will so refer to him), alleged himself to be a citizen of the state of Mississippi; that defendant in error, Commercial Publishing Company (referred to herein as defendant), published a libel against him in its 'newspaper called the Commercial Appeal, in the city of Memphis, state of Tennessee, but that the said Commercial Appeal has a large circulation throughout the state of Mississippi and of adjoining states and among foreign cities, and also in foreign countries.' $10,000 actual damages were prayed and $10,000 punitive damages.

Summons was issued and returned, served by the sheriff of the county, as: 'Executed personally on the Commercial Publishing Company' by delivering a copy to E. K. Williams, described as 'its agent, at Jackson, Mississippi,' and to A. C. Walthall, described as 'its correspondent, at Jackson, Mississippi.'

Defendant filed a petition for removal of the action to the district court of the United States, which petition stated the nature of the action, that plaintiff was a resident and citizen of Mississippi, that defendant was a corporation chartered under and by virtue of the laws of Tennessee, that the time for answering or pleading to the declaration had not expired, that defendant had not appeared therein, and that defendant appeared only specially, and for the sole purpose of requesting the removal of the cause to the district court of the United States, and that it did not waive any objections or exceptions to the jurisdiction. A bond, as required by law, was duly given, which was approved, and an order of removal was duly made. The copy of the record was duly filed in the district court of the United States. The defendant then filed in the latter court a plea to the jurisdiction over the person of defendant, appearing specially for that purpose. The plea alleged that the state court had not acquired jurisdiction of the defendant, because (a) it was a corporation of the state of Tennessee, and that it had never taken out a license to do business in Mississippi, nor, at the time of the service of the summons, did it have an agent, office, or place of business in Hinds county, state of Mississippi; (b) the persons upon whom service was made were neither agents nor officers of, nor in any relation to, defendant, for the reason that defendant was not doing business in the state of Mississippi.

Plaintiff demurred to the plea, stating as grounds (1) that it was directed to the service of process, and not to the declaration, as required under § 29 of the Judicial Code [36 Stat. at L. 1095, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 142]; (2) no right exists to enter a special appearance in the Hinds county circuit court under the laws of the state of Mississippi, all appearances being general, even though process be invalidly served.

The demurrer was overruled and issue joined on the plea to the jurisdiction, and the court, having heard the evidence, decided that neither of the persons upon whom summons was served was such an agent of defendant that service upon him would give jurisdiction over the person of defendant, and thereupon found the issue for defendant.

Before judgment was entered, plaintiff called up his motion for judgment for default because defendant had not pleaded or demurred to the declaration within thirty days after the filing of the copy of the record of removal, as required by § 29 of the Judicial Code. The motion was overruled, the court reciting in its order that it was of 'opinion that defendant was not required to plead or demur to the declaration unless the process of summons in the state court was duly served upon an agent of defendant upon whom service of process was authorized to be made.'

Judgment was then entered, quashing the service of process and dismissing the action 'without prejudice to the right of plaintiff to sue upon the causes of action set up in the declaration.'

Plaintiff prayed a writ of error to this court upon the question of jurisdiction. It was allowed in open court, the court reciting that it was allowed on the question of jurisdiction only, the court having dismissed the action 'on the sole question that the court had no jurisdiction of the action.'

The question in the case is the simple one of what is the effect of §§ 29 and 38 of the Judicial Code. Section 29 provides for the filing of a petition for the removal of a suit from a state court to the district court of the United States at any time before the defendant is required by the laws of the state to answer or plead, and the filing therewith of a bond for 'entering in such district court, within thirty days from the date of filing said petition, a certified copy of the record in such suit.' It provides that, this being done, the state court shall accept the petition and bond and 'proceed no further in such suit.' It provides further that notice of the petition and bond shall be given to the adverse party, and that 'the said copy being entered within said thirty days, as aforesaid, in said district court of the United States, the parties so removing the said cause shall, within thirty days thereafter, plead, answer, or demur to the declaration or complaint in said cause, and the cause shall then proceed in the same manner as if it had been originally commenced in the said district court.'

Section 38 provides that the district court, in suits so removed, shall 'proceed therein as if the suit had been originally commenced in said district court and the same proceedings had been taken in such suit in said district court as shall have been had therein in said state court prior to its removal.'

The argument is that these sections abolish the practice declared in Goldey v. Morning News, 156 U. S. 518, 39 L. ed. 517, 15 Sup. Ct. Rep. 559, and Wabash Western R. Co. v. Brow, 164 U. S. 271, 41 L. ed. 431, 17 Sup. Ct. Rep. 126. In the former case the following propositions were laid down: (1) The right and procedure of removal of actions from a state court are to be determined by the Federal law. (2) The legislature or the judiciary of a state can neither defeat the right nor limit its effect. (3) The act of Congress by which the practice, pleadings, and forms and modes of proceeding in actions at law in the courts of the United States are required to conform as near as may be to those existing in the state courts applies only to cases of which the court has jurisdiction according to the Constitution and laws of the United States. (4) A suit must be actually pending in a state court before it can be removed, but its removal to the court of the United States does not admit that it was rightfully pending in the state court, or that the defendant could have been compelled to answer therein; but enables the defendant to avail himself in the United States court of any and every defense duly and seasonably reserved and pleaded to the action "in the same manner as if it had been originally commenced in said circuit court." The words quoted, it will be observed, are repeated in § 29, 'district court' being substituted for 'circuit court.'

In Wabash Western R. Co. v. Brow, 164 U. S. 271, 279, 41 L. ed. 431, 434, 17 Sup. Ct. Rep. 126, it is said: 'By the exercise of the right or 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 the 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.'

Subsequent cases have applied this ruling. Mechanical Appliance Co. v. Castleman, 215 U. S. 437, 54 L. ed. 272, 30 Sup. Ct. Rep. 125, and cases cited therein.

It is contended, however, as we have seen, that §§ 29 and 38 of the Judicial Code have instituted a new and more expeditious practice. This is deduced from that part of § 29 which provides that the party desiring to remove a case shall make and file with his petition a bond for entering in the district court, within thirty days from the date of filing his petition, a certified copy of the record, written notice thereof to be given the adverse party, and the copy of the record being so entered, 'the parties so removing the said cause shall, within thirty days thereafter, plead, answer, or demur to the declaration or complaint in said cause. . . .'

The purpose of these provisions, which are an amendment to the prior law, it is contended, is to expedite trials and preclude a defendant from preventing a speedy trial in the state court by removal proceedings and 'then consume the time and expense and exercise of jurisdiction of the Federal court by invoking, by motion, the court's jurisdiction to dismiss the cause, and thus compel plaintiff to go upon a fool's errand.' To prevent this consequence, it is further insisted, the record was required to be filed within thirty days from the date of filing the petition for removal, which, necessarily, it is said, would be in vacation, and that therefore the requirement that within thirty days after it is filed the defendant 'shall plead, answer, or demur to the declaration or complaint in said cause' necessarily means 'a plea or demurrer to the declaration, and cannot mean a plea in abatement to the service of the writ.'

It may be conceded that the purpose of the amendment was to secure expedition in the disposition of the case, but a revolution in the practice and efficacy of the right of removal is not lightly to be inferred. And a revolution it would be. It would take from the Federal courts the power they have possessed under the cases cited,—a power not only to pass upon the merits of the case, but upon the validity of the service of process; that is, upon the question of jurisdiction over the person of the defendant. How essential this power is to the right of removal is obvious. Without it a state could prescribe any process or notice, or a plaintiff, as in the pending case, serve process on a person having no relation with a defendant, and compel him to submit to it and to a jurisdiction not of his residence, or give up his right to take the case to what, in contemplation of law, may be a more impartial tribunal for the determination of the action instituted against him, and which it is the purpose of the removal proceedings to secure to him; and, it must be assumed, completely, not by surrender of any of his rights, but in protection and security of all of them.

The weakness of plaintiff's contention is demonstrated not only when we consider all of the language of § 29, but the language of § 38, which provides that in all suits removed the district court shall proceed therein as if the suit had been originally commenced in the district court, 'and the same proceedings had been taken in such suit in said district court as shall have been had therein in said state court prior to its removal.' In other words, the cause is transferred to the district court as it stands in the state court and the defendant is enabled to avail himself in the latter court of any defenses, and, within the time designated, plead to the action 'in the same manner as if it had been originally commenced in said district court.' And these words, we have seen, were explicitly given such effect in the cited cases.

It is clear, therefore, that plaintiff gives too restrictive a meaning to the word 'plead' in § 29. It must be construed to include a plea to the jurisdiction, and, so construing it, all of the provisions for removal of causes become accordant and their purposes fulfilled,—the right of a speedy disposition of the suit to the plaintiff, and the right of the defendant to have all questions determined by the Federal tribunal.

Plaintiff further contends that, under the Mississippi Code, the filing of the petition for removal constitutes a general entry of appearance; that therefore, if § 29 does not compel the removing party to plead to the declaration within thirty days, 'then, under § 914, U. S. Rev. Stat., U. S. Comp. Stat. 1901, p. 684, the 'practice, pleadings, forms, and modes of proceeding' in the state court, adopted in the Federal Court, would make the plea to the jurisdiction here in the district court a general entry of appearance, and would require a plea to the merits at the next term of the district court under the Code of the state,' because 'a special is a general entry of appearance under § 3946, Code of 1906.'

The contention is untenable. Goldey v. Morning News, and Mechanical Appliance Co. v. Castleman, supra.

Judgment affirmed.