Where the defendant, appearing specially for that purpose, moved to quash a return of service of a summons and prayed judgment whether it should be compelled to plead on the ground that it was a non-resident corporation, it was held that the appearance was not thereby made general.24 It was so held: of a motion to quash service upon a party in another district on the ground that it appears from the face of the bill of complaint that the relief sought is of such nature that he cannot lawfully be called upon to defend against the same in this district.'' 25 Of a motion to set aside service upon the ground that the court was without jurisdiction of the subject-matter of the suit.26 Of an application for leave to take a deposition in support of a motion to set aside the service of process.27 Of an application to vacate an attachment even when made on the ground that the papers did not state a cause of action.29 Of a motion to vacate an order directing the payment of money.30 Of a prayer for costs upon the motion to set aside the service.31 Of an affidavit containing an argument upon the merits submitted on behalf of another perse who had appeared.32

28

It seems that there is no general appearance or waiver by the defendant's obtaining an order extending his time to plead to

24 N. K. Fairbanks & Co. v. Cincinnati, N. O. & T. P. Ry. Co., C. C. A., 54 Fed. 420; Am. Cereal Co. v. Eli Pettijohn C. Co., 70 Fed. 276. It is said in the Encyclopedia of Pleading and Practice, article II, section 626, that where a party appears in court and objects to the jurisdiction of the court over his person, he must state specifically the grounds of objection; by not so stating them his appearance will be construed a general one, although he moves to dismiss on that ground." Citing Bell Bros. v. White Lake Lumber Co., 21 Neb. 525; Aultman v. Steinman, 8 Neb. 109; Bucklin v. Strickler, 32 Neb. 602; Layne v. Ohio River R. Co., 35 W. Va. 438.

25 Jones v. Gould, C. C. A., 149 Fed. 153.

26 Smith v. Government of Canal Zone, C. C. A., 249 Fed. 273.

27 Garvey v. Compania Metalurgica Mexicana, 222 Fed. 732.

28 Davis v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 217 U. S. 157, 54 L. ed. 708.

29 Lowe v. Swinehart Tire & Rubber Co., 211 Fed. 165; Wood v. Fertick, 17 Misc. (N. Y.), 561.

30 Chatham & Phenix Nat. Bank of the City of New York v. Guaran ty Trust Company of New York, C. C. A., 256 Fed. 90.

31 Budris V. Consolidation Coal Co., 251 Fed. 673.

32 G. & C. Merriam Co. v. Saalfield & Ogilvie, 241 U. S. 22.

the merits if the court denies his application,33 nor by his obtaining an adjournment of the motion 34 nor by his asking for a stay of proceedings pending such decision.35

A removal of a cause from a State to a Federal court is not a general appearance whether or not the petitioner states that he appears specially for the purpose of the removal only.36 Even when he joins in the petition for removal with a party properly served.37 Nor, it has been held, is a demand for service of a copy of the complaint, made by a defendant in person or by an attorney.38

The later authorities hold: that when an objection to the jurisdiction over the person of the defendant is filed with a formal appearance, the latter will be considered to be special

38 Meisukas v. Greenough Red Ash Coal Co.; 244 U. S. 54, 37 Sup. Ct. 593, 61 L. ed. 987 (Where the extension was granted at the Court's own motion); Waters v. Central Trust Co. (2d Ct.), C. C. A., 126 Fed. 469; Yanuszauckas v. Mallory S. S. Co., C. C. A., 2nd Ct., 232 Fed. 132; Kuzma v. Witherbee Sherman & Co., 232 Fed. 286; Budris v. Consolidation Coal Co., 251 Fed. 673; Paine Lumber Co. v. Galbraith, 38 App. Div. (N. Y.) 68; Bell v. Good, 22 Civ. Proc. Rep. (N. Y.) 356, 46 N. Y. St. Rep. 572; Benedict v. Arnoux, 38 N. Y. Supp. 882. Contra, Hupfeld v. Automaton Piano Co., 66 Fed. 788; Kneeland v. Austin, 2 Law Bull. (N. Y.) 56; Krause v. Averill, 66 How. Pr. (N. Y.) 97; Briggs v. Stroud, 58 Fed. 717; Midland Contracting Co. V. Toledo Foundry & Machine Co., C. C. A., 154 Fed. 797. In Murphy v. Herring-Hall-Marvin Safe Co., 184 Fed. 495, 498, where defendants procured the order ex parte at chambers and did not serve or file it, until long after the removal of the case, when they procured a certified copy of the record. Cf. Lukosewicz

v. Phila. & Read. Coal & Iron Co., 232 Fed. 292 (where defendant also made objection to the merits); Enright v. Heckscher, C. C. A., 2nd Ct. 240 Fed. 863; (where the extension contained a stipulation that the issue should be of a day certain and there was a general appearance.)

34 Meisukas V. Greenough Red Ash Coal Co., 244 U. S. 54, 37 Sup. Ct. 593, 61 L. ed. 987. (Where plaintiff asked for the adjournment.)

35 Harasimowicz v. Pennsylvania R. Co., 232 Fed. 295.

36 Goldey v. Morning News, 156 U. S. 518, 39 L. ed. 517; Wabash W. R. Co. v. Brow, 164 U. S. 271, 41 L. ed. 431; National Accident Society v. Spiro, 164 U. S. 281, 41 L. ed. 435; Cain v. Commercial Pub. Co., 232 U. S. 124; Am. Oil & Supply Co. v. Western Gas Const. Co., C. C. A., 239 Fed. 505; Wright v. Ankeny, 217 Fed. 988.

37 Garvey v. Compania Metalurgica Mexicana, 222 Fed. 732.

38 Murphy v. Herring-Hall-Marvin Safe Co., 184 Fed. 495; Hoyt v. Og. den Portland Cement Co. (N. D. Y. Y.), 185 Fed. 889.

and not general,39 and that a party may file a special appearance with an objection to the jurisdiction over his person joined with other objections, such as a want of equity,40 or want of jurisdiction over the subject-matter of the suit, without submitting to the jurisdiction of the court.42

The defense by its attorneys at its expense of a suit against another in pursuance of a contract with him is not an appearance by a foreign corporation; nor will it support an application by the plaintiff to make it a party.43

It has been held: that after the question of jurisdiction has been properly raised, and the court has reserved its decision thereupon, a subsequent defensive proceeding, such as an appeal from an injunction order, or the cross-examination of a witness, whose deposition is taken by the plaintiff, and stipulating that copies of letters and telegrams may be used by either party in lieu of the originals, 45 is no waiver of the objection.

A State statute providing that a special appearance for the sole purpose of questioning the jurisdiction is equivalent to a general appearance is constitutional; 46 and has been followed in collateral proceedings, in which a State judgment was offered in evidence, but it does not bind the Federal courts at law or in equity even in a case originally instituted in a State court and brought into a court of the United States by removal.48

47

39 Wood v. Wilbert, 226 U. S. 384, 386, 57 L. ed.

40 Southern Pacific Co. v. Arling ton Heights Fruit Co., C. C. A., 191 Fed. 101. But see Peale v. Marian Coal Co., 172 Fed. 639.

41 Kelley v. T. L. Smith Co., C. C. A., 196 Fed. 466.

42 Ibid.

43 Nelson v. Husted, 182 Fed. 921. But see Texas & Pac. Ry. Co. v. Saunders, 151 U. S. 105, 38 L. ed. 90; Hankinson v. Paige, 31 Fed. 184; Caskey v. Chenoweth, 62 Fed. 712.

44 Bidwell v. Toledo Canal St. Ry. Co., 72 Fed. 10.

45 Central Grain & Stock Ex

change v. Board of Trade, C. C. A., 125 Fed. 463.

46 York v. Texas, 137 U. S. 15, 34 L. ed. 604 (The Texan statute); Western Life Ind. Co. v. Rupp, 235 U. S. 261 (Kentucky statute); Chinn v. Foster-Milburn Co., 195 Fed. 158 (Kentucky statute).

47 Southern Pacific Co. v. Denton, 146 U. S. 202, 36 L. ed. 943; Mexican Central Ry. Co. v. Pinckney, 149 U. S. 194, 37 L. ed. 699; Galveston H. & S. A. Ry. Co. v. Gonzales, 151 U. S. 496, 38 L. ed. 248; all of which arose under the Texan statute.

48 Western Life Indemnity Co. v. Rupp, 235 U. S. 261 (Kentucky

Rule 22 of the Circuit Court of the Ninth circuit provided that any party appearing specially shall state in the paper which he serves and files that the appearance is special, “and that if the purpose for which such special appearance is made shall not be sanctioned or sustained by the court he will appear generally in the cause," and that if such statements be not made "the appearance shall be deemed and treated as a general appearance." This has been upheld. A special appearance, it would seem, is regularly made by special leave of the court obtained by an ex parte motion,50 and it is the safer practice to accompany it with an undertaking by the defendant to abide by the further orders of the court.51 By styling a paper a special appearance the draftsman does not prevent the appearance from becoming general.52 An appearance gratis can only be made by a defendant named in the introduction or prayer for process in the bill, unless by consent of all the parties to the suit.53

§ 170. Effect of an appearance. A general appearance waives all objections to the form or manner of service of the subpoena, including the objections that the defendant was not found and did not reside within the district 2 and that neither

statute); Cain v. Commercial Pub. Co., 232 U. S. 124 (Mississippi statute); Louden Machinery Co. v. Am. Mercantile Iron Co., 127 Fed. 1008, under the Iowa statute.

49 Mahr v. Union Pac. Ry. Co., 140 Fed. 921.

50 Thayer v. Wales, 5 Fisher's Pat. Cas. 448; Romaine v. Union Ins. Co., 28 Fed. 625. But see Dorr v. Gibboney, 3 Hughes, 382; National F. Co. v. Moline M. I. Works, 18 Fed. 863; York County Sav. Bank v. Abbot, 139 Fed. 988.

51 Romaine v. Union Ins. Co., 28 Fed. 625.

52 Crawford v. Foster, C. C. A., 84 Fed. 939; Caskey v. Chenoweth, C. C. A., 62 Fed. 712; Chicago Title & Trust Co. v. Newman, C. C. A., 187 Fed. 573.

53 Attorney-General v. Pearson, 7 Simons, 290, 302; Kentucky S. Min.

Co. v. Day, 2 Saw. 468, 473. See Anderson v. Watt, 138 U. S. 694, 34 L. ed. 1078; Beck & Pith Co. v. Wacker & B. B. & M. Co., C. C. A., 76 Fed. 10; Roberts v. Brooks, 71 Fed. 914.

$ 170. 1 Segee V. Thomas, 3 Blatchf. 11; Goodyear v. Chaffee, 3 Blatchf. 268; Hale v. Continental L. Ins. Co., 12 Fed. 359; Provident Sav. L. Assur. Soc. v. Ford, 114 U. S. 635, 639; Toledo Rys. & Light Company v. Hill, 244 U. S. 48; Norfolk Southern Ry. Co. v. Foreman, C. C. A., 244 Fed. 353. In 29 L. ed. 261, 263; Robinson v. Nat. S. Co., 12 Fed. 361; s. c., 20 Blatchf. 513; Moore Fitker Co. v. Taugher, C. C. A., 239 Fed. 105.

2 Thames & Mersey Ins. Co. v. United States, 237 U. S. 19; Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593, 603, 36 L. ed. 829, 832; St.

party resides within the district even where the case was originally brought in the District Court of the United States, and the jurisdiction depends upon diversity of citizenship; that the summons was served in another district; that a case pending in a Territorial court was after admission of the Territory as a State improperly transferred to a Federal instead of to a State court; and in equity that the plaintiff has an adequate remedy at law unless the latter objection is specifically taken by a concurrent motion or by answer, although the court may take this objection at any time. It has been held that a general appearance waives the objection that an action by the trustee in bankruptcy was not brought in the proper district, and that a