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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; Towie v. Wilder, 51 Vermont, 622; Mashussuck Felt Mill v. Blanding, 17 R. I. 297.
These garnished funds are not shown to be receipts for carriage 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 between 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. Watertown, 130 V. 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 matters 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. S. 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. Chilson, 142 N. Y. 152; Lowe v. Stringham, 14 Wisconsin, 222; Rogers v. McCord, &c., 91 Pac. Rep. (Okl.) 864; Wabash Western Ry. v. Brów, 164 U. S. 271.
Argument for Defendant in Error.
An appearance to a writ of attachment is a general appearance, 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. Nir, 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 special 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 completion of an interstate journey. Johnson v. So. Pac. Co., 196 U.S. 1; Connery v. Railway Co., 92 Minnesota, 20; Shore & Bros. v. B. &0. R. R. Co., 76 S. C. 472.
There is a distinction between merchandise which may or
217 U. S.
Argument for Defendant in Error.
may not become articles of interstate commerce, and cars or
The state laws cannot be permitted to impede or impair in-
The method of service of the writs of attachment was irregular 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., 1st 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 garnishments, 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. S. R. Co., 1 Ill. App. 399; Connery v. R. Co., 92 Minnesota, 20; Shore & Bro. v. B. & 0. R. R. Co., 76 S. C. 472; Seibels v. Northern Cent. Ry. Co., 61 S. E. Rep. (S. 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
Argument for Defendant in Error.
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. S. 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 contracts 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 Ill. App. 399; Connery v. Ry. Co., 92 Minnesota, 20; Johnson v. Union Pacific Ry. Co., 145 Fed. Rep. 249; Johnson v. Union Pacific Ry. Co., 69 Atl. Rep. 288; Seibels v. Northern Cent. Ry. Co., 61 S. E. Rep. 435.
The Interstate Commerce Act enjoining upon railway common carriers the duty of providing and establishing through routes, and the railway act of Congress authorizing and empowering steam railroads to provide and furnish connections and through transportation, create a distinction between water craft engaged in interstate commerce and railway companies 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 Attachment, 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., 08 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
gan, 168; Railway Co. v. Smith, 19 L. R. A. (Miss.) 597; McSham 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. Phænix, 79 Iowa, 394; Crox v. Allen, 91 Iowa, 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 defauit.” The cause of action arose irr 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