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eral court for such service is, when attacked collaterally, at least prima facie evidence of the existence of the jurisdicional facts.35

98. Exemptions from service of subpoena or other process, legal or equitable, other than arrest.-Chief Justice Marshall, in the course of the trial of Aaron Burr, ordered that a subpæna duces tecum should issue against President Jefferson. Jefferson, however, refused to obey the subpoena, while expressing his perfect willingness to furnish the paper desired, if requested in what he considered a proper way. The dispute went no farther.' Subsequently, a motion was made for leave to file a bill in the Supreme Court, praying for an injunction against President Johnson to restrain him from executing the reconstruction laws. The Attorney-General then took the position that the President was not amenable to process; but that point was not then and has not since been decided. On the trial of Guiteau for the murder of President Garfield, a written statement signed by President Arthur was admitted in evidence by consent without his personal attendance. No other officer or person has been claimed to be above the law. The Federal Constitution provides that senators and representatives "shall in all cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same." This has been construed at Circuit to exempt them from service of process, unaccompanied by arrest of the person, when on their way to attend a session of Congress; and it has been further held that such exemption is not lost by a slight deviation from the most direct road to the capital. In a State court the privilege has been extended to members of a Constitutional Convention. In certain cases individuals are temporarily exempt from the service of process. A person temporarily within the district for the purpose of

35 Woods v. Woodson (C. C. A.), 100 Fed. R. 515.

§ 98. Burr's Trial.

2 Mississippi v. Johnson, 4 Wall. 475. See Jefferson's Works, vol. v, p. 102; supra, § 35.

3 Const., art. I, § 6.

4 Miner v. Markham, 28 Fed. R. 387. 5 Miner v. Markham, 28 Fed. R. 387.

6 Bolton v. Martin, 1 Dallas, 29.

attending, either as witness,' party, attorney, or counsel, a trial or other proceeding," civil or criminal," in a State 12 or Federal 13 court, is, while there, exempt from the service of process eundo, morando, et redeundo. A similar exemption would probably be applied to any person while temporarily within the district in the discharge of a public duty." The privilege of a witness does not exempt him from liability to service in a suit arising out of his acts upon that same visit to the jurisdiction.15 A Federal court will not punish as a contempt the arrest or service of process by a State court upon a foreign witness in attendance before it; 16 though it might perhaps upon habeas corpus discharge the witness from such arrest," or punish the party who molested the witness, by a stay of proceedings in a case pending between him and the witness in the Federal court.18 If a person be fraudulently enticed within the district and then served with process by those who thus

7 Person v. Grier, 66 N. Y. 124, and cases there cited; Kauffman v. Kennedy, 25 Fed. R. 785. Service on a foreign corporation by serving its secretary while attending court as witness in the corporation's litigation was held invalid. American Wooden-Ware Co. v. Stein, 63 Fed. R. 676.

8 Parker v. Hotchkiss, 1 Wall. Jr. 269; Juneau Bank v. McSpedan, 5 Biss. 64; Matthews v. Tufts, 87 N. Y. 568; Brooks v. Farwell, 2 McCrary, 220; s. C., 4 Fed. R. 167; Bridges v. Sheldon, 7 Fed. R. 17; Matthews v. Puffer, 10 Fed. R. 606; Larned v. Griffin, 12 Fed. R. 590. A suitor attending a hearing on a demurrer in a foreign jurisdiction, to consult with his counsel, is privileged from service of process. Kims v. Lant, 68 Fed. R. 436. A service of process, made upon a party attending especially the trial of a case in another State, was set aside by a Federal court, although the suit was begun in a court of the State whose courts hold such service good. Holt v. Wharton (C. C. A.), 73 Fed. R. 392.

9 Matthews v. Tufts, 87 N. Y. 568. 10 U. S. v. Bridgman, 8 Am. Law Record, 541; Newton v. Askew, 6 Hare, 319; Matthews v. Tufts, 87 N. Y. 568; Parker v. Marow, 136 N. Y. 585.

11 U. S. v. Bridgman, 8 Am. L. Rec. 541. But see Jenkins v. Smith, 57 How. Pr. (N. Y.) 171.

12 Juneau Bank v. McSpedan, 5 Biss. 64; Matthews v. Tufts, 87 N. Y. 568.

13 Parker v. Hotchkiss, 1 Wall. Jr. 269; U. S. v. Bridgman, 8 Am. L. Rec. 541; Brooks v. Farwell, 2 McCrary, 220; s. C., 4 Fed. R. 167; Bridges v. Sheldon, 7 Fed. R. 17; Matthews v. Puffer, 10 Fed. R. 606; Larned v. Griffin, 12 Fed. R. 590.

14 Lyell v. Goodwin, 4 McLean, 29. 15 Nichols v. Horton, 14 Fed. R. 327. 16 Ex parte Schulenburg, 25 Fed. R. 211.

17 Ex parte Hurst, 1 Wash. C. C. 186. See Ex parte Schulenburg, 25 Fed. R. 211, 212.

18 Bridges v. Sheldon, 7 Fed. R. 17, 42; Ex parte Schulenburg, 25 Fed. R. 211, 212.

induced him to come, the service may be set aside." In one case, when a man was induced by a forged telegram to enter the jurisdiction of the court, the party who served him there was held to be presumptively connected with the fraud.20 It has been held that a party to a suit in a State court is not on his journey there exempt from service of process in another State." A judgment is not void so that it can be attacked collaterally, where process was served upon a party while attending a trial.22

19 Union Sugar Refinery v. Mathiesson, 2 Cliff. 304; Steiger v. Boon, 4 Fed. R. 17; Blair v. Turtle, 5 Fed. R. 394; s. c., 23 Alb. L. J. 435; Baker v. Wales, 15 Abb. Pr. N. S. (N. Y.) 831;

Fitzgerald & M. C. Co. v. Fitzgerald, 137 U. S. 98, 105.

20 Steiger v. Bonn, 4 Fed. R. 17. 21 Holyoke & S. H. F. L. Co. v. Ambden, 55 Fed. R. 593.

22 Walker v. Collins, 59 Fed. R. 470.

CHAPTER VI.

APPEARANCE

§ 99. Definition of an appearance.- An appearance is the process by which a defendant submits himself to the jurisdiction of the court. An appearance is either general or special. By a general appearance a defendant appears for all purposes in the suit. By a special appearance he appears solely for the purpose of objecting to the jurisdiction on account of a defect, omission, or irregularity in the service of the subpœna upon him, or perhaps for some other jurisdictional defect.1 An appearance gratis is an appearance by a defendant who has not been served with process.2

§ 100. What constitutes an appearance. The proper method of entering an appearance is to deliver to the clerk a præcipe, that is, a written direction, ordering him to enter the appearance of the defendant who subscribes it. A defendant may appear in person or by his attorney. No attorney-at-law can appear in a court of the United States unless authorized by a power of attorney, if he is not a member of the bar of such court. The rules as to admission to the bar of the District and Circuit Courts vary with the different courts. It is the usual practice to recognize in each District and Circuit Court a member of the bar of the Supreme Court of the United States as a member of the bar of such inferior court without requiring any formal order or motion for his admission. The Circuit Court of the United States for the Southern District of New York' and the district of New Jersey have, it is understood, in one or more cases refused to recognize members of the bar of the Supreme Court of the United States who had not been

§ 99. 1 National F. Co. v. Moline Malleable I. Works, 18 Fed. R. 863; Elliott v. Lawhead, 43 Ohio St. 171; Dorr v. Gibboney, 3 Hughes, 382; U. S. v. Am. B. T. Co., 29 Fed. R. 17.

2 Daniell's Ch. Pr. (2d Am. ed.) 590595.

§ 100. 1 Daniell's Ch. Pr. (2d Am. ed.) 590, 591.

2 U. S. R. S., § 747.

See Goodyear D. V. Co. v. Osgood, 13 Off. Gaz. 325.

4 See Matter of Joseph Wood, infra,

§ 367.

9

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admitted to practice there; but this practice is not usually adopted. The taking of any proceeding, other than a special appearance and a motion or plea founded thereupon, is equivalent to a general appearance and a submission of the defendant's person to the jurisdiction of the court. Such are the obtaining of an order extending the time "to plead, answer, or take such action as he may be advised;" a petition of intervention, even where the petitioner disclaims any intention to be made a party; a special appearance, accompanied by an answer to the merits; and, it has been held, a special appearance accompanied by a motion to set aside an order reviewing a judgment upon the ground of an irregularity in the proceedings.10 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." 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.1 A stipulation by the defendant's solicitor to answer waives the

5 Jones v. Andrews, 10 Wall. 327; Thornburgh v. Savage M. Co., 1 Pac. Law Mag. 267; Livingston v. Gibbons, 4 J. Ch. (N. Y.) 94, 99.

6 New Jersey v. New York, 6 Pet. 323; Van Antwerp v. Hulburd, 7 Blatchf. 426, 440; Livingston v. Gibbons, 4 J. Ch. (N. Y.) 94; Blackburn v. Selma, M. & M. R. Co., 2 Flippin, 525; Fitzgerald & M. Const. Co. v. Fitzgerald, 137 U. 98; infra, § 101.

7 Hupfeld v. Automaton Piano Co., 66 Fed. R. 788. See Briggs v. Stroud, 58 Fed. R. 717. So held of a stay of proceedings pending a motion to vacate a judgment. Crane v. Penny, 2 Fed. R. 187.

8 Bowdoin College v. Merritt, 59 Fed. R. 6; Jack v. D. M. & Ft. D. R. Co., 49 Iowa, 627; Frank v. Wedderin (C. C. A.), 68 Fed. R. 818.

9 Caskey v. Chenoweth (C. C. A.), 62 Fed. R. 712. Or a plea in bar. Texas & Pac. Ry. Co. v. Saunders, 151

U. S. 105; Hankinson v. Page, 31 Fed.
R. 184.

10 Crawford v. Foster, 84 Fed. R. 939. 11 N. K. Fairbanks & Co. v. Cincinnati, N. O. & T. P. Ry. Co. (C. C. A.), 54 Fed. R. 420; Am. Cereal Co. v. Eli Pettijohn C. Co., 70 Fed. R. 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.

12 Goldey v. Morning News, 156 U. S. 518; Wabash W. R. Co. v. Brow, 164 U. S. 271; National Accident So

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