Argument for Plaintiff in Error.

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court which cannot be reviewed here. As to the constitutionality of the plaintiff's charter we are of opinion that the court was right.

Decree affirmed.

CLARK v. WELLS.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MONTANA.

No. 42. Submitted October 18, 1906.-Decided November 19, 1906.

No valid judgment in personam can be rendered against a defendant without personal service or waiver of summons and voluntary appearance; an appearance, for the sole purpose of obtaining a removal to a Federal court, of a defendant, not personally served but whose property has been attached in a suit in a state court, does not submit the defendant to the general jurisdiction or deprive him of the right to object, after the removal of the case, to the manner of service.

After a case has been removed from the state court to the Federal court the latter has full control of the case as it was when the state court was deprived of its jurisdiction, and property properly attached in the state court is still held to answer any judgment rendered against the defendant, and publication of the summons in conformity with the state practice is sufficient as against the property attached. But a judgment entered on such service by publication can be enforced only against property attached.

Where a judgment collectible only from property attached is absolute on its face, the court so entering it exceeds its jurisdiction and the judgment will be modified and made collectible only from such property. 136 Fed. Rep. 462, modified and affirmed.

THE facts are stated in the opinion.

Mr. Walter M. Bickford, Mr. George F. Shelton and Mr. William A. Clark, Jr., for plaintiff in error:

The Circuit Court was wholly without jurisdiction to proceed in said cause either against the person or property of plaintiff in error, and the judgment against him was void.

The attachment of his property in the State of Montana did not give the state court jurisdiction to proceed to render a judg

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Argument for Plaintiff in Error.

ment against the plaintiff in error without personal service of process upon him within the State of Montana. Pennoyer v. Neff, 95 U. S. 714; Caledonian Coal Co. v. Baker, 196 U. S. 445; Goldey v. Morning News, 156 U. S. 518, 521; Mexican Cent. Ry. Co. v. Pinkney, 149 U. S. 209; Kendall v. United States, 12 Pet. 623; Harris v. Hardeman, 14 How. 334.

Nor did the state court have jurisdiction to render a judgment collectible out of the property attached alone without publication of summons or substituted service in the manner required by the Code of Civil Procedure of the State of Montana. Sec. 890, Code of Civ. Pro., Montana; Low v. Adams, 6 California, 281; Barber v. Morris, 37 Minnesota, 194; Heffner v. Gunz, 29 Minnesota, 108; Walker v. Cottrell, 6 Baxt. (Tenn.) 267; Cooper v. Reynolds, 10 Wall. 308.

When the case was removed to the United States court the only way in which summons could be served so as to give that court jurisdiction is the method prescribed by the laws of the United States. And this was not done. Service of process by publication under a state law in a case pending in the United States court does not confer jurisdiction on that court.

The filing of the petition and bond for removal in the state court did not constitute an appearance on the part of the plaintiff in error, and he was at liberty to assert in the Circuit Court of the United States the want of jurisdiction over his person on the ground that process had not been served upon him at all.

The appearance of the plaintiff in error in the state court for the purpose of removing the case to the Federal court was a special appearance for that purpose alone, and in express terms reserved the right to object to the jurisdiction of the court over his person or property. Goldey v. Morning News, 156 U. S. 518; Wabash Western Ry. v. Brow, 164 U. S. 271, 279; National Accident Society v. Spiro, 164 U. S. 281; Conley v. Mathieson Alkali Works, 190 U. S. 411; Courtney v. Pradt, 196 U. S. 89, 92.

Argument for Plaintiff in Error.

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After removal into the Circuit Court the cause must proceed in the same manner as if it had been originally commenced in the said Circuit Court, and the fact that property had been attached while the cause was pending in the state court prior to removal did not give the Circuit Court jurisdiction to proceed to a judgment without personal service of process upon the defendant within the State and District of Montana. Sec. 8, act of March 3, 1875, 18 Stat. 472.

The service of process must have been personal upon the defendant within the State and District of Montana in order to enforce the attachment lien. Perkins v. Hendryx, 40 Fed. Rep. 657; Toland v. Sprague, 12 Pet. 300.

Under the act of March 3, 1875, as amended by the acts of 1887 and 1888, § 3, after the case has been removed from the state court to the Federal court, it proceeds in the same manner as if it had been originally commenced in the said Circuit Court. 18 Stat. 470, 1 Comp. Stat. 510; Levy v. Fitzpatrick, 15 Pet. 167; Herndon v. Ridgeway, 17 How. 424; Chaffee v. Hayward, 20 How. 208; Harland v. United Lines Tel. Co., 40 Fed. Rep. 308; § 915, Rev. Stat.; Nazro v. Cragin, 3 Dill. 474; Chittenden v. Darden, 2 Woods, 437; Central Trust Co. v. Chattanooga Co., 68 Fed. Rep. 685, 695.

The act does not confer upon the United States courts jurisdiction to entertain suits by the process of foreign attachment, and the statute and any rule adopting the state laws do not give a Circuit or District Court power thus to acquire jurisdiction over a person not a resident of the district, nor served with process therein. Day v. Rubber Co., 1 Blatchf. 630; S. C., Fed. Cas., 3,685; Atkins v. Fibre Co., 7 Blatchf. 566; S. C., Fed. Cas., 602; Saddler v. Hudson, 2 Curt. 7; S. C., Fed. Cas., 12,206; Anderson v. Shaffer, 10 Fed. Rep. 267; Noyes v. Canada, 30 Fed. Rep. 666; Treadwell v. Seymour, 41 Fed. Rep. 581; Ex parte Railway Co., 103 U. S. 794.

If the attachment proceedings constituted a legal or equitable lien upon the property of the plaintiff in error, within the meaning of § 8 of act of March 3, 1875, the publication of

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Argument for Defendant in Error.

summons or other substituted service provided for by the Montana Code did not apply; and the proceedings taken under the Montana statute were ineffectual to confer upon the United States Circuit Court jurisdiction over the person or property of the defendant. Cases cited supra and Roller v. Holly, 176 U. S. 398.

The provision in the act of 1875 expressly provides a method by which an absent defendant may be brought into the United States court, when a suit is there pending to enforce any legal or equitable lien upon real or personal property, and the method is outlined in the act. It is different in essential respects from the method provided by the Code of Montana, and which was followed by the defendant in error. If Congress has legislated upon a given subject and prescribed a definite rule for the government of the Federal courts, it is exclusive of any legislation of the States on the same subject. Ex parte Fisk, 113 U. S. 713; Southern Pacific Co. v. Denton, 146 U. S. 202, 209; Whitford v. Clark County, 199 U. S. 522.

Mr. N. W. McConnell for defendant in error:

Under §§ 914, 915, Rev. Stat., in common-law cases in the Circuit and District Courts, the plaintiff shall be entitled to similar remedies by attachment or other process, against the property of the defendant, which are now provided by the laws of the State in which such court is held for the courts thereof; and such Circuit or District Courts may, from time to time, by general rules, adopt such state laws as may be in force in the States where they are held in relation to attachments and other process, provided that similar preliminary affidavits or proofs, and similar security, as required by such state laws, shall be first furnished by the party seeking such attachment or other remedy. Harland v. United Lines Telegraph Co., 40 Fed. Rep. 308; Boston Electric Co. v. Electric Gas Lighting Co., 23 Fed. Rep. 838; Anderson v. Shaffer, 10 Fed. Rep. 266;

Toland v. Sprague, 12 Pet. 729; Lackett v. Rumbaugh, 45 Fed. Rep. 23.

There is a broad distinction between an action commenced properly in the state court and removed by the defendant to the United States Circuit Court and a case brought in the United States court. Perkins v. Hendryx, 40 Fed. Rep. 657; Crocker Nat'l Bank v. Pagenstecher, 44 Fed. Rep. 705; Richmond v. Brookings, 48 Fed. Rep. 241; Purdy v. Wallace, 81 Fed. Rep. 513.

Under § 914, Rev. Stat., the practice in the state courts in regard to notice should be the same in the United States Circuit Court. It is not a question of jurisdiction, but one purely of practice. Jurisdiction has been acquired by the attachment. United States v. Ottman, 1 Hughes, 313; Pollard v. Dwight, 4 Cranch, 421; Toland v. Sprague, 12 Pet. 330, Levy v! Fitzgerald, 15 Pet. 171; Day v. Hayward, 20 How. 214; Barney v. Globe Bank, 5 Blatchf. 107; Sayler v. Northwestern Ins. Co., 2 Curtis, 212.

Congress has full constitutional power to give the United States courts jurisdiction, over defendants non-resident in the district in which the actions against them are brought, and it has, in §§ 2 and 4 of the act of 1875, given this power in the single instance of suits commenced by attachment in state courts, and removed into United States courts. See 11 Myers, Fed. Dec., §§ 1638-43; Tootle v. Coleman, 107 Fed. Rep. 45.

MR. JUSTICE DAY delivered the opinion of the court.

This case is here upon a question of jurisdiction of the Circuit Court, duly certified under the act of March 3, 1891, 26 Stat. 826.

The action below was commenced by Wells against Clark, September 20, 1904, in the District Court of the First Judicial District of Montana, in and for Lewis and Clark County, to recover on a promissory note in the sum of $2,500, with interest and costs. The summons in the action was returned