Opinion — Davis v. Cleveland, C., C. & St. LR Co.

DAVIS v. CLEVELAND, CINCINNATI, CHICAGO & ST.

LOUIS RAILWAY COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

NORTHERN DISTRICT OF IOWA.

No. 123. Argued March 3, 4, 1910.—Decided April 4, 1910.

Even though the certificate is not in proper form this court can review

the judgment of the Circuit Court under § 5 of the act of 1891 if the

record shows clearly that the only matter tried and decided in that

court was one of jurisdiction. é

The fact that a writ of error was sued out from the Circuit Court of

Appeals to the Circuit Court and dismissed is not a bar to the juris-

diction of this court to review the judgment of the Circuit Court on

the question of its jurisdiction as a Federal court.

A court cannot without personal service acquire jurisdiction over the

person, and it is open to one not served, but whose property is at-

tached, to appear specially to contest the control of the court over

such property; and in this case the appearance of the defendant for

that purpose was special and not general.

'

158 OCTOBER TERM, 1909.

Argument for Plaintiff in Error. 217 U.S.

Neither the enactment of § 5258, Rev. Stat., nor of the Interstate Com-

merce Law by Congress abrogated the attachment laws of the States.

Although different views have been taken in several States as to the

immunity from seizure and garnishment under attachment of cars

engaged in interstate commerce and credits due for interstate trans-

portation, this court holds that it wes within the jurisdiction of the

state court to seize and hold the cars and credits seized and gar-

nisheed in this case, notwithstanding their connection with inter-

state commerce.

THE facts, which involve the liability to attachment of cars

used in interstate commerce, are stated in the opinion.

Mr. Wilbur Owen, with whom Mr. Elbert H. Hubbard was

on the brief, for plaintiff in error:

The cars and funds were subject to attachment and garnish-

ment. The rolling stock of railway corporations is personal

property, over which they have the power of alienation, and

is subject to seizure, when not in actual use, by attachment or

execution, or other valid process, the same as other personal

property. Boston C. M. Ry. Co. v. Gilmore, 37 N. H. 410;

Coe v. Col. Pig. & I. R. R. Co., 10 Ohio St. 372; Louisville &

New Albany Ry. Co. v. Boney, 117 Indiana, 501; Buffalo Coal

Co. v. Rochester & S. L. Ry. Co., 8th Weekly Notes Cases, 126

(Penn.); Williamson v. N. J. S. R. Co., 29 N. J. Eq. 311;

Randall v. Elwell, 52 N. Y. 521; Potter v. Hall, 20 Massachu-

setts, 368; Hall v. Carey, 140 Massachusetts, 131; Johnson v.

Southern Pacific, 196 U. S. 1; Elliott on Railroads, vol. 2,

p. 587; Drake on Attachment, 7th ed., § 252A; 4 Cyc. Law &

Procedure, p. 557; The “ Winnebago” v. Delaney, 205 U.S.

354; Johnson v. Chi. & Pac. Elevator Co., 119 U. 8. 388; The

Robert Dollar, 115 Fed. Rep. 218; Ex parte McNeil, 13 Wall.

236; Menich v. Tehuantepec Co., 16 La. Ann. 46; Sibley v. Fer-

ris, 22 La. Ann. 163; Haberle v. Barringer, 29 La. Ann. 410;

Sherlock v. Alling, 93 U. 8. 99.

Notwithstanding that Congress has passed laws inflicting

severe penalties upon anyone who interferes with the trans-

portation of mail, a boat owned by a mail contractor may be

DAVIS rv. C. C. C. & ST. L. RY. 159

217 U.S. Argument for Plaintiff in Error.

attached if the mail be not on the boat at the time. Parker v.

Porter, 6 La. Ann. 169; 4 Cyc. L., p. 569; Waples on Attach-

ment, § 723; Briggs v. Strange, 17 Massachusetts, 405.

The fact that chattels were when seized upon attachment,

execution or replevin, subjects of interstate commerce or were

in transit from one State te another, has never been regarded

as preventing their actual seizure if within the jurisdiction of

the court issuing the process, and they can even be held by

garnishment of the carrier if not too late to arrest the ship-

ment. Morrell v. Buckley, 20 N. J. L. 667; Santa Fe Ry. Co. v.

Bossut, 19 Am. & Eng. Ry. Cases, 683; 5 Am. & Eng. Ency.

of Law, p. 239; Waples on Attachment, 2d ed., § 449; Moore on

Carriers, pp. 34, 229, 232; Adams v. Scott, 104 Massachusetts,

164; Landa V. Holck, 129 Missouri, 663; The Robert Dollar, 115

Fed. Rep. 218, 222.

The cars in question wken attached were not engaged in

interstate commerce. They were, with one exception, stand-

ing “‘empty and idle” upor the tracks of the garnishees: they

had reached their destination and had been unloaded. Nor.

& West. R. R. Co. v. Comnonwealth, 93 Virginia, 749. The

record fails to establish any contractual relations between the

principal defendant and the garnishees.

Even if the garnishees had the right of reloading the cars, it

is not claimed that there vas any intention on their part to

exercise that right. Rauscz v. Moore, 48 Iowa, 611.

No rule of law or statute requires any railway company to

receive shipments from cornecting lines and transfer them in

the same cars in which tley are tendered; nor are railway

companies bound to allow their cars to go beyond their own

terminals, and in practice railway companies often refuse to

transport freight in any but their own cars, or to allow their

ears to be used beyond their own terminals. Rev. Stat.,

§ 5228, authorizing through shipments is permissive only and

imposes no affirmative duties upon railway companies. 6 Am.

& Eng. Ency. of Law, p. 09; Kentucky Bridge Co. v. Louis-

ville, 37 Fed. Rep. 567; More on Carriers, 453, 454.

160 OCTOBER TERM, 1909.

Argument for Plaintiff in Error. 217 U.S.

In order that a state law, or the action of state authorities

under such law should be construed a ‘‘ regulation of commerce

between States,”’ the operation of such law, or the action of

such state authorities must be a direct interference or regula-

tion, and directly and substantially hurtful to such com-

merce, not a mere incidental or casual interruption or regula-

tion, or remotely hurtful. Sherlock v. Alling, 93 U. S. 99;

L. & N. Ry. Co. v. Kentucky, 183 U.S. 503; N. Y., L. E. & W.

R. R. Co. v. Pennsylvania, 158 U. 8. 431; Henderson Bridge Co.

v. Kentucky, 166 U.S. 150; L. & N. Ry. Co. v. Kentucky, 161

U. S. 677; Nashville Ry. Co. v. Alabama, 128 U. 8. 96; Wall

v. Nor. & West. Ry. Co., 448. E. Rep. (W. Va.) 294; Conery

v.Q. 0. & K. Ry. Co., 99 N. W. Rep. (Minn.) 365, are not simi-

lar in their facts to the case at bar.

Debts due a principal defendant from a garnishee are sub-

ject to garnishment wherever the garnishee could as in this

case be sued by the defendant. See §§ 3497, 3529 of the Code

of Iowa.

There is no inhibition in the laws of Iowa preventing suits

by a non-resident plaintiff in the courts of Iowa. Nor is it

material that the debt was not made payable in the State

where the attachment proceedings were instituted or that the

garnishee’s contract with the defendant is to pay the money in

another State or country than that in which the attachment is

pending. 14 Am. & Eng. Ency. of Law, pp. 804, 816; Harvey

v. G. N. Ry. Co., 50 Minnesota, 405; Drake on Attachment,

7th ed., § 597; Mooney v. Buford, 72 Fed. Rep. (C. C. A.) 32;

Mooney v. U. P. R. R. Co., 60 Towa, 346; German Bank v. Ins.

Co., 83 Iowa, 491: National Fire Ins. Co. v. Chambers, 53 N. J.

Eq. 468; Blake v. Williams, 6 Pick. 286; Minor on Conflict of

Laws, § 125; Wyeth Hdw. Co. v. Lang, 127 Missouri, 242;

Cross v. Brown, 19 R. I. 220; Harris v. Balk, 198 U. S. 215;

Newfielder v. Ger.-Am. Ins. Co., 6 Washington, 336; M. & O.

R. R. Co. v. Barnhill, 90 Tennessee, 349; Smith v. Tabor, 16

Tex. Civil Appeals, 154; Pomeroy v. Rand, 157 Illinois, 176;

Cousins v. Lovejoy, 83 Maine, 467; Fithian v. Ry. Co., 31 Pa.

DAVIS v. C. C. C. & ST. L. RY. 161

217 U.S. Argument for Plaintiff in Error.

St. 114; Barr v. King, 96 Pa. St. 485; Blake v. Huntington, 129

Massachusetts, 444; Cahoon v. Morgan, 38 Vermont, 236;

Towle v. Wilder, 51 Vermont, 622; Mashussuck elt Mill v.

Blanding, 17 R. I. 297.

These garnished funds are not shown to be receipts for car-

riage of interstate commerce, and even if so they would not

be immune from garnishment. The garnishment of these

funds would in no sense be a “regulation of commerce be-

tween the states.”

The statutes of Iowa inhibit special appearances. § 3541

of the Code of Iowa; Bank v. Vann, 12 Iowa, 523; Rahn v.

Greer, 37 Iowa, 627; Lesure Lumber Co. v. Ins. Co., 101 Iowa,

514; Moffitt v. Chicago Chronicle Co., 107 Iowa, 412; Blondel v.

Ohlman, 109 N. W. Rep. (Ia.) 806; Sam v. Hochstadler, 76

Texas, 162; Lucas v. Patton, 107 S. W. Rep. (Tex.) 1143.

This section of the Iowa Code is binding upon Federal

courts held within that State, § 914, Rev. Stat.; Amy v. Water-

town, 130 U. S. 304; but even if not it generally would be

binding in this case as it was removed from the state court.

The appearance made by the defendant in error, and the mat-

ters contained in its motion and affidavit, filed under such

appearance, cannot be regarded as a special, but constituted

a general appearance.

A special appearance is never allowable except for the single

purpose of objecting to the jurisdiction of the court over the

person of the defendant. 3 Cyc. L., pp. 502, 511, 527; 2 Ency.

of Pl. & Pr. 620, 621, 625; Elliott v. Lawhead, 43 Ohio St. 171;

Fitzgerald Const. Co. v. Fitzgerald, 137 U. 8. 98; Welch v.

Ayers, 61 N. W. Rep. (Neb.) 635; Abbott v. Semple, 25 Illinois,

91; State v. Buck, 15 So. Rep. (La.) 531; Mahr v. U. P. R. Co.,

140 Fed. Rep. 921; Perrine v. Knights Templars, 101 N. W.

Rep. (Neb.) 101; S.C., 98 N. W. Rep. 481; Dudley v. White,

44 Florida, 264; Ray v. Trice, 48 Florida, 297; Reed v. Chil-

son, 142 N. Y. 152; Lowe v. Stringham, 14 Wisconsin, 222;

Rogers v. McCord, &c., 91 Pac. Rep. (Okl.) 864; Wabash West-

ern Ry. v. Brow, 164 U. 8. 271.

VOL. ccxvu—11

162 OCTOBER TERM, 1909.

Argument for Defendant in Error. 217 U.S.

An appearance to a writ of attachment is a general ap-

pearance, especially when coupled with objections requiring

evidence to sustain, or objections to the jurisdiction in rem, or

it moves to quash for matters not going to irregularity in

process or service thereof, and is sought to be sustained by

matters dehors the record. Waples on Attachment, 2d ed.,

§ 702, 658; Wood v. Young, 38 Iowa, 102; Whiting v. Budd, 5

Missouri, 443; Evans v. King, 7 Missouri, 411; Withers v.

Rogers, 24 Missouri, 340; Greenwell v. Greenwell, 26 Kansas,

530; Gorham v. Tanquery, 58 Kansas, 233; Burnham v. Lewis,

65 Kansas, 481; Frazier v. Douglas, 48 Pac. Rep. 36; Nicholas

& Shepard Co. v. Baker, 13 Oklahoma, 1; Ray v. Mercantile

Co., 26 Pac. Rep. 996; Duncan v. Wycliffe, 4 Met. (Ky.) 118;

Raymond v. Niz, 49 Pac. Rep. 1110; Gann v. Beasly, 59 N. W.

Rep. 714; Cooper v. Reynolds, 10 Wall. 308.

Although the defendant in error did not ask for a dismissal

of the action in its written motion filed under its alleged spe-

cial appearance, the record discloses that on June 6, a second

judgment was rendered on motion of the defendant, quashing

the service of notice on the defendant, dismissing plaintiff's

cause of action and rendering judgment in its favor and

against the plaintiff for $129.70.

This was error and is a general appearance. Teater v. King,

35 Washington, 138; Welch v. Ayers et al., 61 N. W. Rep.

371; Bucklin v. Strickler, 32 Nebraska, 602; Everett v. Wilson

83 Pac. Rep. 211.

Mr. W. H. Farnsworth, with whom Mr. Frank L. Littleton

was on the brief, for defendant in error:

The cars attached were engaged in interstate commerce and

under control of Congress, notwithstanding some of the cars

were empty and awaiting their return to their owner in com-

pletion of an interstate journey. Johnson v. So. Pac. Co., 196

U. S. 1; Connery v. Railway Co., 92 Minnesota, 20; Shore &

Bros. v. B. & O. R. R. Co., 768. C. 472.

There is a distinction between merchandise which may or

DAVIS v. C. C. C. & ST. L. RY. 163

217 U.S. Argument for Defendant in Error.

may not become articles of interstate commerce, and cars or

other instruments which are used in moving interstate com-

modities, which may have stopped temporarily on their

journey. Johnson v. S. P. Co., 196 U.S. 20.

The state laws cannot be permitted to impede or impair in-

terstate traffic, or the usefulness of the facilities for such

traffic. J.C. R. Co. v. Illinois, 164 U. 8. 142; Bowman v. Chi-

cago, 125 U.S. 465; Ry. Co. v. Richmond, 19 Wall. 584; C. &

N. W. Ry. Co. v. Foresi, 95 Wisconsin, 80; Michigan, C. R. Co.

v.C. & M.L.S.R.Co., 1 Ill. App. 399; Connery v. R. Co., 92

Minnesota, 20; Shore & Bros. v. B. & O.R.R.Co., 768. C. 472;

Seibels v. Northern Cent. Ry. Co., 61 8. E. Rep. 435; Wall v.

Ry. Co., 64 L. R. A. (W. Va.) 501.

The method of service of the writs of attachment was irregu-

lar and illegal, and conferred no rights upon the plaintiff. The

cars sought to be reached were susceptible of manual delivery,

and to create any lien or give effect to the proceedings the

officer must take manual custody of the property. § 3898,

Iowa Code. Also see 1 Shinn on Attach. & Garn., Ist ed., 391 .

Culver v. Rumsey, 6 Ill. App. 598; R. R. Co. v. Pennock, 51

Pa. St. 244; Drake on Attachments, 7th ed., § 246; Crawford v.

Newell, 23 Iowa, 453; Hibbard v. Zenor, 75 Iowa, 471; Hall v.

Craney, 140 Massachusetts, 131; Boston R. R. Co. v. Gilmore,

37 N. H. 410.

The statute of Iowa permitting attachments and garnish-

ments, and the sale of property thereunder, is not of itself

broad enough to authorize the attachment and sale of railway

property necessary in the discharge of its public duties.

Michigan C. R. Co. v. C. & M. L. 8. R. Co., 1 Ill. App. 399;

Connery v. R. Co., 92 Minnesota, 20; Shore & Bro. v. B. &

0. R. R. Co., 76 8. C. 472; Seibels v. Northern Cent. Ry.

Co., 61 S. E. Rep. (8. C.) 435; Wall v. Railway Co., 64 L.

R. A. (W. Va.) 501; Railway Co. v. Forest, 95 Wisconsin, 80,

supra.

Under the common law no such rights exist, and where

the right is claimed under a statute, the statute must be

164 OCTOBER TERM, 1909.

Argument for Defendant in Error. 217 U.S.

specific in its provisions with reference to the attachment,

seizure and sale of railway property. Railway Co. v. Forest,

95 Wisconsin, 80; Commissioners v. Tommey, 115 U. 8. 122;

Wall v. Railway Co., 64 L. R. A. 506.

Even if ordinarily garnishment proceedings would confer

rights and create a lien in favor of the plaintiff, jurisdiction

could not be thus obtained in this case, because under con-

tracts with the defendant the garnishees had the sole right to

possession and use of the cars until returned to the defendant

in the usual course of operation. Drake on Attachment, 3d

ed., 462; Wall v. Ry. Co., 52 W. Va. 485; Michigan C. R. R.

Co. v.C. & M. L. S. R. Co., 1 Til. App. 399; Connery v. Ry.

Co., 92 Minnesota, 20; Johnson v. Union Pacific Ry. Co., 145

Fed. Rep. 249; Johnsor v. Union Pacific Ry. Co., 69 Atl.

Rep. 288; Seibels v. Northern Cent. Ry. Co., 61 8. E. Rep.

435.

The Interstate Commerce Act enjoining upon railway com-

mon carriers the duty of providing and establishing through

routes, and the railway act of Congress authorizing and em-

powering steam railroads to provide and furnish connections

and through transportation, create a distinction between

‘water craft engaged in interstate commerce and railway com-

panies so engaged as to the right of foreign attachment. The

St. Louis, 48 Fed. Rep. 312; Union Pac. Ry. Co. v. Chicago Ry.

Co., 163 U. S. 564.

The garnishees were indebted to the defendant only for

their proportionate share of earnings on account of interstate

shipments, and to allow garnishment of the same would burden

and impede interstate commerce to the same effect as the

actual seizure and attachment of the carrier’s cars.

As to the law in regard to garnishment, see Drake on At-

tachment, 3d ed., § 474; Shinn on Attachment, 2d ed., §§ 490,

491, 494; Railroad Co. v. Maggard, 39 Pac. Rep. 985. See,

also, Central Trust Co. v. Ry. Co., 68 Fed. Rep. 685; Aye v.

Lidscomb, 21 Pick. 263; Gold v. Ry. Co., 1 Gray, 424; Singer

v. Fleming, 39 Nebraska, 679-686; Drake v. Ry. Co., 89 Michi-

DAVIS v. C. C. C. & ST. L. RY. 165

217 U.S. Opinion of the Court.

gan, 168; Railway Co. v. Smith, 19 L. R. A. (Miss.) 597; Mc-

Sham v. Knox, 114 N. W. Rep. (Minn.) 955.

Special appearances are allowable under the state practice

of Iowa where the objection is that service was unauthorized.

Wilson v. Stripe, 4 G. G. Rep. (Ia.) 551; Hastings v. Pheniz,

79 Iowa, 394; Crox v. Allen, 91 Lowa, 462; Chittenden v. Hobbs,

9 Iowa, 417; Murray v. Wilcox, 122 Iowa, 188; Cibula v. Pitts

Co., 48 Iowa, 528.

Mr. Justice McKenna delivered the opinion of the court.

This case presents a question of jurisdiction arising from the

levy in attachment proceedings on freight cars alleged to have

been engaged, when attached, in interstate commerce. The

case is here on certificate.

Plaintiff in error, as executor of the estate of Frank E.

Jandt, brought an action against the Cleveland, Cincinnati,

Chicago & St. Louis Railway Company for causing the death of

Jandt, a statute of Illinois giving such an action to the personal

representative of a person whose death has been caused by

“wrongful act, neglect or default.” The cause of action arose

in Illinois. The action was brought, however, in the District

Court of Woodbury County, State of Iowa, and under the

laws of the latter State writs of attachment and garnishment

were issued and levied upon certain cars of the C. C. C. & St.

L. Ry. Co., in the possession of the other defendants in error,

referred to hereafter as the garnishee companies. Notice of

garnishment was duly served on the garnishee companies, and

each of them filed answers. Plaintiff in the action, and we will

so refer to him, controverted by proper pleadings the answers,

and demanded that evidence be taken on the issues joined.

The original notice was served on the C. C. C. & St. L. Ry.

Co., at its principal place of business in the State of Ohio; also

notice of attachment and garnishment. It filed a petition for

removal of the action to the Circuit Court of the United States

for the Northern District of Iowa, Western Division. Its peti-

166 OCTOBER TERM, 1909.

Opinion of the Court. 217 U.S.

tion alleged that it was a corporation duly formed and organ-

ized under the laws of Indiana, and that the plaintiff was a

citizen of Iowa. The petition was granted and the case duly

removed to the Circuit Court of the United States. On the

second of October, 1905, the C. C. C. & St. L. Ry. Co., filed a

motion, which was denominated a motion to quash and set

aside service, in which it stated that it appeared specially for

the purpose of the motion only, “to quash and set aside the

service of attachment and garnishment attempted to be made

in the cause by plaintiff against the defendant’s property.”

The motion was supported by an affidavit. The affidavit

stated that the company was incorporated under the laws

of Indiana and Ohio, and conducted and operated lines of

railway in those States and in Illinois, with its principal

place of business in Cincinnati, Ohio; that it was not in-

corporated in Iowa, and had no agent or agency of any char-

acter in that State; that it was a common carrier of freight

and passengers, and in the carrying on of such business it

owned and operated cars for the transportation of freight

and merchandise through the various States; that in the

conduct of such business it had arrangements, contracts and

agreements with various connecting railroad companies doing

business as common carriers, including all of the railway

companies attached and garnisheed in the action by plaintiff,

under which those companies accepted from it, at points on

its line of road, its cars loaded with goods and merchandise

destined for various points on their respective lines, to be

transported through the various States to destinations, con-

stituting interstate shipments of commerce. It was stated

that it was provided in the agreement that such connecting

carriers should have the right to reload the cars received by

them, and so use the same in returning them to the place

where received, and that in all cases the cars of the company

were to be returned to it in the usual and ordinary course of

transit as soon as the nature and character of the business

would permit. It was further stated that under the laws

DAVIS v. C. C. C. & ST. L. RY. 167

217 U.S. Opinion of the Court.

of Congress the company was bound to furnish cars so loaded

to be transported continuously from one State to another

w:.uout being unloaded, and that under the same laws con-

necting carriers were bound to receive the same and transport

them from one State to another. That in pursuance of the

agreements and laws of Congress the cars attached were

delivered by the C. C. C. & St. L. Ry. Co. to the other com-

panies, and so received by them; that the cars were part of

the company’s rolling stock, and were necessary to enable it

to perform its duties as a common carrier; that by reason of

the commerce clause of the national Constitution and of the

Interstate Commerce Act the cars could not be levied upon;

that the company had not been served personally or by pub-

lication, and had not appeared in the action to any writ issued

in the cause. It was further stated that none of the garnishee

companies was indebted to the company, and that any ac-

counts which might be due from the garnisheed companies

were only by reason of the contracts and agreements for the

use of the cars, as heretofore stated, under which the permits

for the use of the cars were arranged between the companies

“by wheelage or mileage of such cars, and were constantly

and hourly changed from bills due one company to bills due

the other company, which bills were satisfied and settled by

such exchange of service and use of each other’s cars. And

such agreements and contracts are to be discharged, satisfied

and settled only in the city of Chicago and State of Illinois,

where the same are made, and such accounts, or debts, if any,

in favor of this defendant, have no situs in the State of Iowa.”

The affidavit was supplemented by two others.

Plaintiff filed a “resistance” to the motion to quash and

to the motion of the garnishee companies, and alleged that a

special appearance was “unwarranted and unauthorized by

law,” and that as the purpose sought by the motion of the

defendant company could only be had by a general appear-

ance the special appearance should be construed to be such

and subject the “ person of the defendant as well as the prop-

168 OCTOBER TERM, 1909.

Opinion of the Court. 217 U.S.

erty actually attached, and the property and money of the

defendant sought to be reached by garnishment proceedings

to the jurisdiction of the court.” The ground of this con-:

clusion was stated, with some repetition, to be that the special

appearance was not for the purpose of raising any question of

lack of notice, or notice of defect or irregularity of process,

but to contest the right to attach property by evidence out-

side the record of the case, and required the court to pass

upon the merits of the attachment. Plaintiff denied that the

property attached was engaged in interstate commerce or in

the transportation of interstate commerce at the time they

were attached, that they were not in use at the time they

were attached, but were standing empty upon the tracks of

the railway companies in whose possession they were found,

and denied the existence of the agreements and arrange-

ments between the C. C. C. & St. L. Ry. Co. and the other

companies in regard to the cars and that no contractual rules

existed between them, that the cars were not necessary either

to that company or to the other companies to enable them

to perform their duties as common carriers, and alleged that

they were subject to attachment as other personal property.

It was stated that the garnishee companies had no interest

in the attached cars, and none of them had served notice of

interest or ownership on the plaintiff nor on the sheriff.

The answers of five of the garnishee companies denied in-

debtedness to the C. C. C. & St. L. Ry. Co., averred the exist-

ence of agreements as to the cars substantially as set out by

that defendant, also their duties as common carriers under

the acts of Congress, and that the cars were in their possession

in pursuance of the agreements with the defendant, and were

to be returned empty or loaded in the usual and customary

course of business. The other companies also denied indebt-

edness to the C. C. C. & St. L. Ry. Co., and in effect set up

the defense that the cars were in interstate commerce business.

On the twenty-second of May, 1906, the court sustained

the motion to quash the judgment and discharge the gar-

DAVIS v. C. C. C. & ST. L. RY. 169

217 U.S. Opinion of the Court.

nishees thereunder. On June 6 “the court” (we quote from

the record) “rendered further judgment, dismissing the said

cause of action as to said principal defendant, on the ground

that the court had no jurisdiction of the defendant or the

attached property of the defendant, and taxed the costs in

the case to the plaintiff.”

The time for the allowance and filing of the bill of exceptions

was extended to October 28, 1906, and on the twenty-eighth

of September it was allowed, the order reciting as the date

“being one of the regular days of the May A. D. 1906 term

of said court.” The bill of exceptions also recited that it was

submitted to the court, with a prayer that it “be signed and

certified by the judge, and approved by him and made a part

of the record in said cause, preparatory to the prosecution

of a writ of error from the said Circuit Court of the United

States to the Supreme Court of the United States.” It con-

cludes us follows:

“And the court having examined said transcript of the

record, papers and proceedings, hereby certifies that the

same contains the entire record in said cause, including the

plaintiffs petition, the answers of the garnishees, the defend-

ant’s motion to quash and set aside service and the plaintiff’s

resistance thereto, and all of the proceedings had thereunder

in reference thereto, including the opinion, orders and judg-

ment of the court thereon, and the exceptions of the plaintiff

thereto, and all of the record submitted to the court upon

which the judgment herein was rendered.

“On consideration whereof the court does allow the writ

of error upon the plaintiff giving bond according to law in

the sum of $500, which shall operate as a supersedeas bond.

“And in this case, I, the undersigned, judge of the Circuit

Court of the United States in and for the Northern District of

Iowa, Western Division, further hereby certify that in sus-

taining the motion to quash the attachment and discharging

the garnishees, and in dismissing the action as to the principal

defendant, and taxing the costs to the plaintiff, the sole ques-

170 OCTOBER TERM, 1909.

Opinion of the Court. 217 U.S.

tion considered and determined by the court was that the

court had no jurisdiction over the person of the defendant or

of the property involved, and that the appearance of the

principal defendant as shown by the record was a special and

not a general appearance, and that the same did not subject

said principal defendant and its property to the jurisdiction

of the court.

“This certificate is made conformable to the act of Con-

gress of March 3, 1891, chapter 317, and the opinion filed

herein is made a part of the record, and will be certified and

sent up as part of the proceeding, together with this cer-

tificate.”’

For the opinion of the court, see 146 Fed. Rep. 403.

A writ of error was sued out from the Circuit Court of

Appeals, according to the admission of counsel, though there

is nothing in the record to show it, which writ was dismissed.

156 Fed. Rep. 775.

A motion is made to dismiss the writ of error, and in sup-

port of the motion it is urged (1) that the certificate as to

jurisdiction was not granted during the term at which the

judgment was rendered; (2) that the writ of error was not

perfected in time as required by law, in that the writ and

certificate were. allowed on the twenty-eighth of September,

1906, and were not presecuted in this court until April, 1908;

(3) that the certificate is not sufficient in law nor proper in

form, in that it does not state any facis or propositions of

law upon which the question of the court’s lack of jurisdiction

rested; (4) that the jurisdiction of the court as a Federal court

was not put in issue; (5) that the case having been taken to

the Circuit Court of Appeals and there decided that the writ

of error should be to that court and not to the Cireuit Court,

the latter court, it is urged, having lost jurisdiction of the

case; (6) there is no certificate of a jurisdictional question in

the order allowing the writ of error.

The first and second grounds in support of the motion to

dismiss are based upon a misapprehension of the record. The

-

DAVIS v. C. C. C. & ST. L. RY. 171

217 U.S. Opinion of the Court.

term at which the judgment was rendered had not expired

when the certificate of jurisdiction was made, and the writ

of error was allowed on the eighteenth of March, 1908, not

on September 28, 1906, as contended by defendants in error.

The grounds of the motion based on the form or sufficiency

of the certificate are not tenable.’ Even if we should admit,

which we do not, that the certificate is not, as it is contended,

in proper form, the record shows clearly that. the only matter

tried and decided in the Circuit Court was one of jurisdiction.

This is sufficient. United States v. Larkin, 208 U. 8. 333, 339.

The other grounds urged to support the motion to dismiss

all depend upon the proposition whether the question of the

jurisdiction of the Circuit Court as a Federal court was pre-

sented. If so, the writ of error from the Circuit Court of

Appeals is no bar to the present writ of error. Excelsior

W. P. Co. v. Pacific Bridge Co., 185 U. 8. 282; United States

v. Larkin, supra. And if so, the way is clear to s decision

of the question on the merits.

As we have shown, the Circuit Court decided that it had

no jurisdiction over either the person or the property of the

principal defendant, the C. C. C. & St. L. Ry. Co. The first,

non-jurisdiction over the person, depending, as the court con-

sidered, upon the second, non-jurisdiction over the property,

as we understand the oninion. And this view of it the Circuit

Court of Appeals took.

The latter court stated the questions to be, “Was the

defendant’s appearance to contest the validity of the judg-

ments and garnishments a general one? Were the cars and

credits of the defendant subject to judgment and garnish-

ment? In other words, did the trial court secure such do-

minion over person or property by appearance or process as

authorized it to proceed to trial of the action and render a

valid judgment upon the issues involved? The trial court

answered them in the negative and dismissed the action for

the want of jurisdiction. In respect to the essential char-

acter of these questions, they are not distinguishable from

172 OCTCBER TERM, 1909.

Opinior of the Court. 217 U.S.

one of the legality of the service of summons upon a defend-

ant. They do not pertain to the merits of the case, and did

not arise during the progress of the trial. They lay at the

threshold, aud upon an affirmative answer depended the

power of the court to hear and decide the cause. In legal

phraseology that power is termed ‘jurisdiction.’ It is none

the less a jurisdictional matter in the case of judgment and

garnishment of the property of a non-resident because the

power of the court to proceed to trial depends in the absence

of the defendant upon the lawful seizure of his property.

The question of jurisdiction was decided in favor of the

defendant, and the decision disposed of the case.” For these

propositions the court cited Board of Trade v. Hammond

Elevator Co., i98 U. S. 428; United States v. Jahn, 155 U. S.

109; St. Lowis Cotton Compress Co. v. American Cotton Co.,

125 Fed. Rep. 196; and, as we have seen, dismissed the case

on the ground that this court alone had the power to review

the decision of the Circuit Court. We concur in the views of

the Circuit Court of Appeals, for which also may be cited

Kendall v. American Artomatic Loom Co., 198 U. S. 477.

The motion to dismiss is denied.

The ruling of the Circuit Court dismissing the action is at-

tacked upon the grounds, (1) that the appearance of the C. C.

C. & St. L. Ry. Co. was a general appearance, and, being so,

the railway company submitted itself to the jurisdiction of the

court, “regardless of the seizure of the attached property:”

(2) that the property was subject to attachment.

1. It is not controverted that, if the properi* was subject to

attachment, the procedure prescribed by the law: of Iowa was

duly observed and hence, it is contended, that the property

having been seized under the jurisdiction of the court under

valid regular process, the motion to quash the attachment was

based on matters dehors the record, going to the jurisdiction

of the court over the subject-matter of the action, and the

court had jurisdiction over the person of the railway company.

“A special appearance,” it is contended, “can never serve a

DAVIS v. C. C. C. & ST. L. RY. 173

217 U.S. Opinion of the Court.

dual or triple purpose, but is only allowed for the sole purpose

of objecting to the jurisdiction of the court over the person of

the defendant.”

The ruling of the Circuit Court, we think, was broader than

plaintiff conceives it to have been. It appears from the record

that the C. C. C. & St. L. Ry. Co. was a corporation of Indiana

and Ohio, and that certain of its freight cars were attached in

Iowa in the hands of the garnishee companies, and that there

were certain credits due to it from some of the latter com-

panies, on account of interstate commerce freight. In other

words, it fairly appears upon the face of the complaint in the

action and the attachment papers that the cars had been sent

into the State in the transportation of interstate commerce. It

is true, it was also contended, that an issue was presented by

the affidavits upor the motion to quash as to what contractual

arrangements existed between the company and the other

companies as tu the right of the latter companies to reload the

cars and so return them, but there was no dispute that it was

their duty to receive them. Besides, the bill of exceptions con-

tains the following: “No evidence is s:bmitted by the plaintiff

in opposition to the motion of defendant to quash the attach-

ment, or in support of its pleading controverting the answer of

the several garnishees, and the matters are submitted upon the

record, including such motion and admission of the pleadings.”

The question, therefore, was submitted to the court whether

the cars, under the circumstances, were engaged in interstate

commerce when they were aitached, and the court considered

it. to be immaterial that the cars had not started on a return

trip, s.ying that: “The vars of defendant when brought into

the State of Iowa to complete an interstate shipment of prop-

erty were being used in interstatc commerce, and were being so

used while waiting, at least, a reasonable time to be loaded

for the return trip.”

The court further decided that debts, if any, which were due

from the garnishee companies to the C. C. C. & St. L. Ry. Co.

for its share of the price of carriage were “as much a part of

174 OCTOBER TERM, 1909.

Opinion of the Court. 217 U.S.

interstate commerce, as defined by the Supreme Court, as the

actual carriage of their property.”

2. The next contention of plaintiff is that the appearance of

the C. C. C. & St. L. Ry. Co. was a general appearance and sub-

mitted its person to the jurisdiction of the court. In other

words, it is contended that the person over whom: personal

jurisdiction has not been obtained cannot appear specially to

set aside the attachment of his property, which we must as-

sume in order to completely exhibit the contention, is valid.

We cannot concur in the contention. It is supported, it is

true, by some cases, but it is opposed by more. Drake on At-

tachments, § 112, and cases cited. The stronger reasoning we

think too is against the contention. A court without personal

service can acquire no jurisdiction over the person, and when

it attempts to assert jurisdiction over property it should be

open to the defendant to specially appear to contest its control

over such property; in other words to contest the ground of its

jurisdiction. Harkness v. Hyde, 98 U.S. 476; Railway Co. v.

Denton, 146 U.S. 206; Goldey v. Morning News, 156 U.S. 518,

523; Railway Co. v. Brow, 164 U.S. 271, 278.

The appearance of the C. C. C. & St. L. Ry. Co. was not to

object to the subject-matter of the action, as it is contended by

plaintiff. The subject-matter of the action is a demand for

damages, which can only be prosecuted to efficient judgment

and be satisfied out of the property attached. Clark v. Wells,

203 U. S. 164. The jurisdiction of the court, therefore, de-

pended upon the attachment, and the appearance to set that

aside was an appearance to cbject to the jurisdiction. In other

words, the defendant was only in court through its property,

and it appeared specially to show that it was improperly in

court.

These contentions being disposed of, we are brought to the

question whether the cars were “immune from judicial proc-

ess”’ because engaged in interstate commerce. The question

has come up in several of the state courts and differc at views

have been taken. The question has been answered in the

DAVIS v. C. C. ©. & ST. L. RY. 175

217 U.S. Opinion of the Court.

affirmative in Michigan C. R. Co. v. C. & M. L. 8. R. Co., 1

Ill. App. 399; Connery v. R. R. Co., 92 Minnesota, 20; Shore &

Bro. v. B. & O., 76 8. C. 472; Seibels v. Northern Central Ry.

Co., 618. E. Rep. 435; Railway Co. v. Forest, 95 Wisconsin, 80;

Wall v. N. & W. R. R. Co., 52 W. Va. 485. A negative answer

has been pronounced in the following cases: De Rochemont v.

N. Y.C. & N. R. R. Co., 71 Atl. Rep. (N. Y.) 868; Southern

Flour & Grain Co. v. N. P. Ry. Co., 127 Georgia, 626; Southern

Ry. Co. v. Brown, 62 8. E. Rep. (Ga.) 177; Cavanaugh Bros. v.

Chicago, R. I. & P. Ry., 72 Atl. Rep. 694; See also Humphreys

v. Hopkins, 81 California, 551. Boss v. Chicago, R. I. & P. Ry.,

72 Atl. Rep. 694, may be assigned to the list of cases giving a

negative answer. In that case there was an attachment of

credits or funds representing the sending carrier’s part of

transportation charges on interstate freight. The attachment

was sustained. In Woll v. N. & W. R. R. Co. the levy was

upon cars which were unloading. In the case in 1 Ill. App. the

condition or situation of the cars does not clearly appear. In

the other cases the cars were not in use when attached. In

most of the cases there is a full and able discussion of the prin-

ciples involved. In Humphreys v. Hopkins it was taken for

granted that the cars were subject to process, the case going off

on another point.

The answer to the question is, therefore, certainly ot

obvious, and counsel, realizing it, have pressed many con-

siderations on our attention. Their arguments result in cer-

tain contentions. The plaintiff's contention is, that even

though the cars in question had been or were to be used in in-

terstate commerce, their attachment was not a regulation of

such commerce, and that they were as legally subject to at-

tachment as the property of any other non-resident. The con-

tention of the defendants is an exact antithesis of that of plain-

tiff. It is that the state laws cannot be permitted to impede

or impair interstate traffic or the usefulness of the facilities for

such traffic. And, further, that the provisions of the Interstate

Commerce Act, providing for the establishment of through

176 OCTOBER TERM, 1909.

Opinion of the Court. 217 U.S.

routes, and § 5258 of the Revised Statutes, providing for the

connection of railroads, exempt the cars from attachment.

In our discussion we may address ourselves to the conten-

tion of defendants. They do not contend that the laws of the

State have the purpose to interfere with the interstate com-

merce, or are directly contrary to the acts of Congress. They

do contend, however, that “to permit the instrumentalities

used in the interchange of traffic by railway common carriers

to be seized on process from various state courts does directly

burden and impede interstate traffic within the inhibition of

the acts of Congress.’ In other words, that the acts of Con-

gress constitute a declaration of exemption of railroad prop-

erty from attachment, and, of course, from execution as well,

by reason of their provisions for continuity of transportation.

This can only result if there is incompatibility between the

obligations a railroad may have to its creditors and the obli-

gations which it may have to the public, either from the na-

ture of its service or under the acts of Congress. Obligations

it surely will have to creditors, inevitable even in providing

equipment for its duties—inevitable in its performance of

them. It would seem, therefore, that the contentions of the

defendants are but deductions from the broader proposition

that all of the property of the railroad company is put apart

in a kind of civil sanctuary. And one case (Wail v. Railroad

Company, supra) seems to give this extent to the exemption.

Indeed, the decision in the case at bar seems to do so, the court

holding, as we have seen, that the C. C. C. & St. L. Ry. Co.’s

share of the compensation for carriage was as much a part of

interstate commerce as the actual carriage of property. A

still broader proposition under the contention might be urged.

If the property have such character that all obligations of the

company must yield to the public use or to the obligations im-

posed by Congress, the railroad company itself, it might be

contended, cannot burden its property and that its property is

taken from it as an asset of credit, the means, it may be, of

performing the very duties enjoined upon it, and the anomaly

Z Ts

DAVIS v. C. C. C. & ST. L. RY. 177

217 U.S. Opinion of the Court.

will be presented of the duties it is to perform becoming an

obstacle to acquiring the meaas of performing them. Indeed,

the further consequence might be saic to follow that the rolling

stock of a railroad is exempt from taxation, at least so far as

taxation might be attempted to be enforced against the rolling

stock. We realize that a proposition may be generally ap-

plicable and yet involve embarrassment when pushed to a

logical extreme. If this be so of the contentions of defendant,

it may be so of the counter contentions which would subject

the cars of a railroad company to attachment process, however

engaged or wherever situate.

It is very certain that when Congress enacted the Interstate

Commerce Law it did not intend to abrogate the attachment

laws of the States. It is very certain that there is no conscious

purpose in the laws of the States to regulate, directly or indi-

rectly, interstate commerce. We may put out of the case,

therefore, as an element an attempt of the State to exercise

control over interstate commerce in excess of its power. In-

deed, the questions in this case might arise upon process issued

out of the Circuit Court of the United States under the Federal

statutes. For, by §§915 and 916 of the Revised Statutes,

remedies “by attachment or other process,” before judgment,

and “‘by exetuticn or otherwise,” after judgment, are given

litigants in common law causes in the Circuit and District

Courts of the United States.

The questions in the case, therefore, depend for their solu-

tion upon the interpretation of Federal laws. May the laws of

the States for the enforcement of debts (laws which we need

not stop to vindicate as necessary foundations of credit and

because they give support to commerce, state and interstate),

and the Federal laws which permit or enjoin continuity of

transportation, so far incompatible that the provisions of the

latter must be construed as displacing the former? We do not

think so. Section 5258 of the Revised Statutes is permissive,

not imperative. It removed the “trammels interposed by

State enactments or by existing laws of Congress” to the

VOL. CcXvi1I—12

178 OCTOBER TERM, 1909.

Opinion of the Court. 217 U.S.

powers of railroad companies to make continuous lines of

transportation. Railroad Co. v. Richmond, 19 Wall. 584, 589,

The Interstate Commerce Act, however, has a different char-

acter. It restricts the powers of the railroads. It regulates

interstate railroads and makes it unlawful for them, by any

“means or devices,” to prevent “the carriage of freight from

being continuous from the place of shipment to the place of

destination.” '

The Interstate Commerce Law therefore is directed agains‘

the acts of railroad companies which may prevent continuity

of transportation. Section 5258 of the Revised Statutes was

directed against the trammels of state enactments then exist-

ing or which might be attempted. In neither can there be

discerned a purpose to relieve the railroads from any obliga-

tions to their creditors or take from their creditors any remedial

process provided by the laws of the State, and, as we have

seen, provided by Federal law as well. May it be said that

such result follows from the use of property in the public serv-

ice? A number of cases may be cited against such conten-

tion. We have already pointed out what might be contended

as its possible if not probable consequences. In a recent case

in this court a lien imposed under the law of Michigan upon a

vessel to be used in domestic and foreign trade was sustained.

To the contention that the enforcement of the lien while the

vessel was engaged in interstate commerce was unlawful and

* Sec. 7. That it shall be unlawful for any common carrier subject to

the provisions of this act to enter into any combination, contract, or

agreement, expressed or implied, to prevent, by change of time sched-

ule, carriage in different cars, or by other means or devices, the carriage

of freights from being continuous from the place of shipment to the

place of destination; and no break of bulk, stoppage, or interruption

made by such common carrier shall prevent the carriage of freights

from being and being treated as one continuous carriage from the place

of shipment to the place of destination, unless such break, stoppage, or

imterruption was made in good faith for some necessary purpose, and

without any intent to avoid or unnecessarily interrupt such continuous

carriage, or to evade any of the provisions of this act.

DAVIS v. C. C. C. & ST. L. RY.. 179

217 U.S. Opinion of the Court.

void in view of the exclusive control of Congress over the sub-

ject, we answered: “ But it must be remembered that concern-

ing contracts not maritime in their nature, the State has

authority to make laws and enforce liens, and it is no valid

objection that the enforcement of such laws may prevent or

obstruct the prosecution of a voyage of an interstate charac-

ter. The laws of the States enforcing attachment and execu-

tion in cases cognizable in state courts have been sustained

and upheld. Johnson v. Chicago & Pacific Elevator Co., 119

U.S. 388. The State may pass laws enforcing the rights of a

citizen which affect interstate commerce, but fall short of

regulacing such commerce in the sense in which the Constitu-

tion gives exclusive jurisdiction to Congress. Sherlock et al. v.

Alling, 93 U. 8. 99, 103; Kidd v. Pearson, 128 U. 8. 1, 23;

Pennsylvania R. R. Co. v. Hughes, 191 U.S. 477.” The Winne-

bago, 205 U. S. 354, 362.

The interference with interstate commerce by the enforce-

ment of the attachment laws of a State must not be exag-

gerated. It can only be occasional and temporary. The

obligations of a railroad company are tolerably certain, and

provisions for them can be easily made. Their sudden asser-

tion can be almost instantly met; at any rate, after short delay

and without much, if any, embarrassment to the continuity of

transportation. However, the pending case does not call for a

very comprehensive decision on the subject. We only decide

that the cars situated as this record tends to show that they

were when attached, and the amounts due from the garnishee

companies to the C. C. C. & St. L. Ry. Co., were not exempt

from process under the state laws, and that the court had,

therefore, jurisdiction of them and through them of the C. C.

C. & St. L. Ry. Co.

Judgment reversed and the cause remanded with directions to

proceed in accordance with this opinion.

Mr. Justice Hotes took no part in the decision.