Van Antwerp v. Hulburd. ex parte action of the Comptroller had proceeded. The proviso to the 57th section had one further object, which, I have no doubt, was its chief purpose, namely, to exclude any possible attempt to procure an injunction in any State court, to restrain the Comptroller in the discharge of his duty to appoint a receiver to close up the affairs of a bank that had become insolvent, or failed to comply with the provisions of the act. It was intended that, in that matter, State courts should have no jurisdiction. I find no other circumstances in which proceedings to enjoin the Comptroller under the act are authorized by it. It is unnecessary, for the purposes of this case, to say, and I do not say, that no case can arise in any court in which, under the general principles of law and equity, the legality and effect of the acts of the Comptroller of the Currency, or of the Treasurer of the United States, may not be subjected to adjudication, nor that no case can exist in any court in which an injunction to stay the action of either of them may be obtained. What I mean to say is, that such a case is not provided for in the act in question, save as above stated and commented upon; and the court must seek its jurisdictional power over the subject-matter, and over the persons of the defendants, in some source other than the act referred to. The conclusion necessarily follows, that the plaintiff is not, by the act of Congress relied upon, warranted in prosecuting an action in this court, as assignee of the bonds deposited with the Treasurer of the United States pursuant to the provisions of that act, to call such Treasurer and the Comptroller of the Currency to an account for their acts in their official character in relation thereto, and that this court has no jurisdiction to summon them, by writ of subpoena, to answer to the present bill of complaint. It is, however, insisted that the Comptroller and Treasurer have, by their plea, submitted to the jurisdiction, and that their plea to the jurisdiction should, therefore, be overruled. If the only ground of objection to the jurisdiction of the court were the service of the subpoena out of the district, the consideration of the plaintiff's claim in this respect would be material. It is a familiar rule, often recognized in the Federal courts, that a party may waive his privilege, if he be relieved from liability to be sued in a particular court, and he may even waive the service of any process; and, by pleading or answering to the merits, he does submit to the jurisdiction. This, however, assumes that the court has jurisdic Van Antwerp v. Hulburd. tion of the controversy between the parties. But it is equally clear that exemption from liability to be sued in a particular court, and the objection that the process of the court is served out of the jurisdiction, are the proper subjects of a plea in abatement. I think the court might, in the present case, have granted a motion to set aside the proceeding as to the Comptroller and Treasurer on that sole ground; but the defendants were not bound to abide the result of a mere motion. It was a matter which could be made to appear of record, and in a form which would make it subject to review. Such pleas at law and in equity are warranted on common law grounds, and in courts of general jurisdiction, as in England; and the treatise and dicta cited to us do not deny this, but establish the contrary. Much more clearly is this true in a court whose jurisdiction is derived from statutes, in which the jurisdiction of the subject-matter and of persons, and the limitation of the modes of acquiring jurisdiction, are prescribed, and in terms prohibitory of any other. This will appear well recognized in decisions in the Federal courts, some of which will be presently referred to. I am, therefore, clear, that, independently of the broader question which I have above discussed, if this case is to be disposed of on the plea that the process herein was served in the District of Columbia, and not in this jurisdiction, and upon defendants who were then inhabitants of that district, and not within this jurisdiction, the matter of the plea is sufficient to defeat the action. A party is not, by merely pleading to the jurisdiction, and alleging the facts which, if true, show want of jurisdiction, to be deemed to submit to the jurisdiction or waive its defect. So simple a proposition needs no authority. Every case, which countenances such a plea, affirms it. In Halsey v. Hurd, 6 McLean, 14, it was held, that a plea in abatement for want of service of process was not a waiver of process; and that the plea might be abandoned, and a motion to quash the writ for defective service of process might be substituted. If there be any embarrassment to a decision based solely upon the plea in this case, it arises, not from the matter of the plea, or the fact that the objection is raised by plea, but from the form of the plea, or the manner in which the plea is interposed. The elementary rule on that subject found in text writers, enforced by the courts in England, and countenanced, to Van Antwerp v. Hulburd. some extent, at least, in the practice of the Federal courts, is that pleas which are in abatement, and grounded upon personal privilege, or relief from liability to be sued in a particular court, must be put in in propria persona, and the appointment of attorney, solicitor or agent, by whom the plea is put in, is, per se, an appearance, an admission that the court has jurisdiction, and a submission thereto. See Teese v. Phelps, 1 McAllister, 48; Teasdale v. The Rambler, Bee's Rep. 9; the plea in Dred Scott v. Sandford, 19 How. 393. The rule is, in a high degree, technical, and it is not necessary, in the view that I have taken of the whole case, to affirm or enforce it here. It was stated on the argument, that the present plea was, at the instance of the court, made a substitute for a motion to quash the proceeding or set aside the service of process on these defendants, in order that the matter might appear of record. My learned associate, before whom the motion was made, confirms this, and counsel insisted, on the argument, that they ought, if purely technical objections arise, to be at liberty to withdraw the plea and proceed upon their motion without being prejudiced by having pleaded; and my associate, who is familiar with what occurred in regard to the motion, thinks that should be permitted. Upon what precise reason does not appear, but the defendant in Halsey v. Hurd (above cited) was permitted to abandon his plea and move to quash the writ for defective service. If, therefore, I were of opinion that the plea put in by the solicitor was, in its present form, to be deemed a submission to the jurisdiction, I should acquiesce in the views expressed by my associate on the argument. But, entertaining the opinion which I do, that we have no jurisdiction between these parties to grant the relief sought, I deem it unnecessary to pursue the inquiry last above referred to any further. If I am right in my views, we cannot pronounce judgment between these parties upon the facts alleged in this bill of complaint; and, therefore, whether the particular plea before us is formal or informal, whether the matter were before us on motion or otherwise, it is our duty to dismiss the bill as to these defendants. The general principle, that waiver of objection by the parties. does not give jurisdiction of the cause or matter in controversy between them, would, probably, not be denied. But it has been acted upon so often in the Federal courts, and in cases in which the Van Antwerp v. Hulburd * * subject of a plea to the jurisdiction in equity, as well as at law, is adverted to, that some may be profitably cited. In Capron v. Van Noorden, 2 Cranch, 126, it was held, that, on writ of error, a plaintiff might assign for error the want of jurisdiction in the court in which he himself brought the suit, and so take advantage of his own error in not showing his title to sue in that court. In Jackson v. Ashton, 8 Pet. 148, in equity, the court directed the dismissal of the bill because it did not affirmatively appear that the Circuit Court had jurisdiction, though it did not appear negatively that it had not. This was done by the court of its own motion. The counsel were anxious to have the case heard and decided on the merits, but Chief Justice MARSHALL stated the opinion of the court to be, that the bill must be dismissed. In The State of Rhode Island v. The State of Massachusetts, 12 Pet. 657, also in equity, the distinction above adverted to between cases in which a party may and must plead to the jurisdiction, is stated. It is there said: "Jurisdiction is the power to hear and determine the subjectmatter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them. *An objection to jurisdiction on the ground of exemption from the process of the court in which the suit is brought, or the manner in which the defendant is brought into it, is waived by appearance and pleading to issue; but when the objection goes to the powers of the court over the parties, or the subject-matter, the defendant need not, for he cannot, give the plaintiff a better writ or bill." It is also there said, that the Supreme Court is one of limited powers and must be confined to cases and parties over which the Constitution and laws have authorized it to act, and that any proceeding without the limits prescribed is coram non judice, and its action is a nullity; and, in that case, the distinction between the courts of England and the Federal courts, in particulars important to this subject, is pointed out. See, also, Toland v. Sprague, 12 Peters, 300; Voorhees v. Bank of the United States, 10 id. 449, 473, 474. In Smith v. Kernochen, 7 How. 198, the right and duty to plead in abatement a personal privilege or want of jurisdiction of the person is held. The power and duty of the court to recognize their want of jurisdiction is concisely stated in Tyler v. Hand, 7 How. 573, citing Dockminique v. Davenant, 1 Salk. 220. If the matter or ground of objection to the jurisdiction be extrinsic, the defendant must plead it; if intrinsic, the court will act upon it on motion or notice it of them Van Antwerp v. Hulburd. selves. In Cutler v. Rae, 7 How. 729, a libel in admiralty was prosecuted in the District Court of Massachusetts, the proofs were taken, a hearing was had and a decree was rendered for the libelants, which was affirmed in the Circuit Court. Chief Justice TANEY, in the Supreme Court, discusses the question of the jurisdiction of the District Court. He says: "It is true the counsel for the appellant has waived all objections on that score;" but "if the proceedings show a case which the District Court was not authorized to try, it is the duty of this court to take notice of the want of jurisdiction, without waiting for an objection from either party," and the decree was reversed on that distinct ground. In the case of Dred Scott v. Sandford, 19 How. 393, this subject is discussed by nearly all of the judges. There, a plea in abatement had been decided in favor of the plaintiff below, and it was insisted that he could not allege error in that decision. But it was held that the court could give no judgment for the plaintiff or for the defendant in a case in which it had not jurisdiction, no matter whether there were a plea in abatement or not. See pp. 402, 456, 458, 472 to 474, and numerous cases cited. Judge CURTIS (p. 567) says: "The course of the court is, where no motion is made by either party, on its own motion to reverse such a judgment for want of jurisdiction, not only in cases where it is shown, negatively, by a plea to the jurisdiction, that jurisdiction does not exist, but even where it does not appear affirmatively that it does exist. It acts upon the principle that the judicial power of the United States must not be exerted in a case to which it does not extend, even if both parties desire to have it exerted." See Piquignot v. Pennsylvania R. R. Co., 16 How. 104. For the same principles, see, also, Striker v. Mott, 6 Wend. 465; Henry v. Cuyler, 17 Johns. 469, 471; Davis v. Packard, 6 Wend. 327; Jordan v. Dennis, 7 Metc. 590, in State courts. If, therefore, I am right in my opinion that this court has no jurisdiction to hear and determine, between this plaintiff and the Comptroller of the Currency and the Treasurer of the United States, the matters alleged in the bill of complaint, we can and must so hold, whether the particular plea put in by the defendants is good or not. The bill, as to those defendants, should be dismissed. HALL, J., concurred in the result of the foregoing opinion. |