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Opinion of the Court.

by a purpose: it devolved upon the judges to be affected the duty of construing and deciding, and gave them the power to reject, as Congress doubtless expected they would do, any subordinate provision in such state statutes which, in their judgment, would unwisely encumber the administration of the law or tend to defeat the ends of justice in their tribunals.' Indianapolis & St. Louis Railroad v. Horst, 93 U. S. 291, 300, 301.

"Under this act, the Circuit Courts of the United States follow the practice of the courts of the State in regard to the form and order of pleading, including the manner in which objections may be taken to the jurisdiction, and the question whether objections to the jurisdiction and defences on the merits shall be pleaded successively or together. Delaware County v. Diebold Safe Co., 133 U. S. 473, 488; Roberts v. Lewis, 144 U. S. 653. But the jurisdiction of the Circuit Courts of the United States has been defined and limited by the acts of Congress, and can be neither restricted nor enlarged by the statutes of a State. Toland v. Sprague, 12 Pet. 300, 328; Cowles v. Mercer County, 7 Wall. 118; Railway Co. v. Whitton, 13 Wall. 270, 286; Phelps v. Oaks, 117 U. S. 236, 239. And whenever Congress has legislated upon any matter of practice, and prescribed a definite rule for the government of its own courts, it is to that extent exclusive of the legisla tion of the State upon the same matter. Ex parte Fisk, 113 U. S. 713, 721; Whitford v. Clark County, 119 U. S. 522.

"The acts of Congress, prescribing in what districts suits between citizens or corporations of different States shall be brought, manifest the intention of Congress that such suits shall be brought and tried in such a district only, and that no person or corporation shall be compelled to answer to such a suit in any other district. Congress cannot have intended that it should be within the power of a State by its statutes to prevent a defendant, sued in a Circuit Court of the United States in a district in which Congress has said that he shall not be compelled to answer, from obtaining a determination of that matter by that court in the first instance, and by this court on writ of error. To conform to such statutes of a State would unwisely encumber the administration of the law' as

Opinion of the Court.

well as 'tend to defeat the ends of justice' in the national tribunals. The necessary conclusion is that the provisions referred to, in the practice act of the State of Texas, have no application to actions in the courts of the United States."

While the decision in the Denton case does not fully cover the case at bar, still the reasoning on which the court reached its conclusion therein has a bearing upon the question under consideration, which occupies rather a middle ground between the question presented in York v. Texas, above cited, and that presented in the Denton case, and is not directly or authoritatively controlled by either of those decisions. In the present case, the precise question is whether the provisions of the Texas statutes which give to a special appearance, made to challenge the court's jurisdiction, the force and effect of a general appearance, so as to confer jurisdiction over the person of a defendant, are binding upon the Federal courts sitting in that State, under the rule of procedure prescribed by the 5th section of the act of June 1, 1872, as reproduced in § 914 of the Revised Statutes.

The words of this section, "as near as may be," were intended to qualify what would otherwise have been a mandatory provision, and have the effect to leave the Federal courts some degree of discretion in conforming entirely to the state procedure. These words imply that, in certain cases, it would not be practicable, without injustice or inconvenience, to conform literally to the entire practice prescribed for its own courts by a State in which Federal courts might be sitting. This qualification is indicated in Indianapolis & St. Louis Railroad v. Horst, 93 U. S. 291, 300, 301.

But aside from this view, there are other provisions of the statutes which clearly manifest an intention on the part of Congress not to leave the jurisdiction of the inferior Federal courts to the regulation and control of state legislation. Thus by section 1011, Revised Statutes, as corrected by the act of February 18, 1875, c. 80, it is provided that "there shall be no reversal in the Supreme Court, or in a Circuit Court upon a writ of error, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court." 18 Stat. 318.

Opinion of the Court.

This entirely preserves to this court the right and duty to pass upon the jurisdiction of the lower court.

So, too, by the act of February 25, 1889, 25 Stat. 693, c. 236, it is provided that "in all cases where a final judgment or decree shall be rendered in a Circuit Court of the United States in which there shall have been a question involving the jurisdiction of the court, the party against whom the judg ment or decree is rendered shall be entitled to an appeal or writ of error to the Supreme Court of the United States to review such judgment or decree, without reference to the amount of the same; but in cases where the decree or judgment does not exceed the sum of five thousand dollars, the Supreme Court shall not review any question raised upon the record except such question of jurisdiction;" and it is further provided that "such writ of error or appeal shall be taken and allowed under the same provisions of law as apply to other writs of error or appeals."

By the first clause of section 5 of the act of March 3, 1891, 26 Stat. 826, 827, c. 517, it is provided that "appeals or writs of error may be taken from the District Courts, or from the existing Circuit Courts, direct to the Supreme Court

in any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision."

These provisions of the Federal statutes which confer upon litigants in the Federal courts the right to have the jurisdiction of such courts reviewed by this court by appeal or writ of error would be practically destroyed or rendered inoperative and of no effect if state statutes, such as those of Texas, could make an appearance to question the jurisdiction of a Federal court a general appearance, so as to bind the person of the defendant. It would be an idle ceremony to bring to this court for review the question of the Circuit Court's jurisdiction, arising out of a failure to serve the defendant with process, if the defendant's special appearance before the lower court to challenge its jurisdiction should, under state laws, amount to a general appearance which conferred such juris

Opinion of the Court.

diction. The effect of the statutes of a State giving such an operation to an appearance for the sole purpose of objecting to the jurisdiction of the court, would be practically to defeat the provisions of the Federal statutes which entitle a party to the right to have this court review the question of the jurisdiction of the Circuit Court. Under well settled principles this could not and should not be permitted, for wherever Congress has legislated on, or in reference to, a particular subject involving practice or procedure, the state statutes are never held to be controlling. In Harkness v. Hyde, 98 U. S. 476, it was held by this court that illegality in the service of process by which jurisdiction is to be obtained is not waived by the special appearance of the defendant to move that the service be set aside; nor after such motion is denied by his answering to the merits. Such illegality is considered as waived only when he, without having insisted upon it, pleads in the first instance to the merits. We are of opinion that under the statutes of the United States the jurisdiction of the Federal courts, sitting in Texas, is not to be controlled by the statutes of that State above referred to. Jurisdiction is acquired as against the person by service of process; but as against property within the jurisdiction of the court, personal service is not required. Boswell v. Otis, 9 How. 336; Pennoyer v. Neff, 95 U. S. 714. But it is well settled that no court can exercise, at common law, jurisdiction over a party unless he is served with the process within the territorial jurisdiction of the court, or voluntarily appears. Kendall v. United States, 12 Pet. 524; Harris v. Hardeman, 14 How. 334.

In the present case, when it was established by the facts stated in the plea in abatement, and admitted by the demurrer thereto, that the plaintiff in error was never brought before the court by any proper or legal process, the Circuit Court was without jurisdiction to proceed in the case; and in so doing, and in assuming jurisdiction and proceeding to trial on the merits, its action was erroneous.

Our conclusion, therefore, is that the judgment of the lower court must be reversed; that the cause be remanded to the


Opinion of the Court.

Circuit Court for the Western District of Texas, with directions to set aside the verdict and judgment, and to overrule the demurrer to the plea in abatement; and it is accordingly so ordered.





No. 229. Submitted April 20, 1893. - Decided May 1, 1893.

The lien imposed upon the real estate of a manufacturer of tobacco, snuff or cigars, by Rev. Stat. § 3207, to secure the payment of internal revenue taxes, is not subject to the laws of the State in which the real estate is situated respecting recording or registering mortgages or liens.

THE case is stated in the opinion.

Mr. Assistant Attorney General Maury for appellants.

Mr. B. F. Jonas for appellee.

MR. JUSTICE SHIRAS delivered the opinion of the court.

The facts of this case, as appearing by the record, are undisputed, and are as follows: Charles A. Snyder was, during the year 1878, engaged in the business of the manufacture of tobacco in the city of New Orleans, and, while so engaged, became indebted to the United States for internal revenue taxes in the sum of several thousand dollars; and these taxes were duly assessed and certified to the collector of internal revenue, who made demand for payment.

On the 20th day of November, 1879, at the time of such indebtedness and demand for payment, and for more than a year prior and subsequent to said date, the said Charles A. Snyder was the owner of certain pieces and parcels of real

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