BOOK VIII. OF THE OTHER PLEADINGS AND PROCEEDINGS DOWN TO JOINDER OF ISSUE. COMPLAINT, with its numerous and important incidents, having been fully considered in the preceding book, the responsive branches of pleading and the proceedings of the parties in connection therewith, or appropriate to that period of the suit, will be treated of in the present, so as regularly to bring down the subject, in its numerous bearings, to the period of the final joinder of issue; the different subjects comprised in the plan thus laid down, being considered in their natural order. CHAPTER I. OF THE DEFENDANT'S COURSE OF ACTION ON BEING SERVED WITH PROCESS. THE present chapter will be devoted to the consideration of the different proceedings, which may, or which must be taken by the defendant, on being served with process, including, in the last place, the time allowed to him for the purpose of pleading in the action. § 159. Proceedings before Appearance. (a.) EXAMINATION OF PAPERS SERVED. As a general rule, the service of notice of appearance is the first proceeding to be taken on the part of the defendant. It is a proceeding, however, that should not be rashly or inconsiderately taken. The summons, if served alone, or the summons and complaint, if VOL. II.-1 served together, should first be carefully inspected, to see whether they, or either of them, are open to objection on the ground of irregularity or variance. Inquiry should also be made as to whether the service has been regular. Defects of this nature are impeachable by motion, but, to be available, such motion must be made at once, and in connection with a limited and special appearance, either by separate notice, or by statement on the face of the papers themselves. A general appearance will wholly waive them. A defendant, by taking that course, will have admitted himself to be regularly in court, and, having done so, all defects in the summons, or its service, or even the want of any summons at all, will then become immaterial. Dix vs. Palmer, 5 How., 233; 3 C. R., 214; Flynn vs. The IIudson River Railroad Company, 6 How., 308; 10 L. O., 158; Webb vs. Mott, 6 How., 439; Voorhies vs. Scofield, 7 How., 51; Hewitt vs. Howell, 8 How., 346. So also, as to irregularities in the complaint, or in the proceedings generally, prior to such appearance. Beck vs. Stephani, 9 How., 193; Hubbell vs. Dana, 9 How., 424; Baxter vs. Arnold, 9 How., 445; Dole vs. Manley, 11 How., 138; Granger vs. Schwartz, 11 L. O., 346; Mahaney vs. Penman, 4 Duer, 603; 1 Abb., 34; Bogardus vs. Livingston, 7 Abb., 428. See likewise, as to waiver in other proceedings, Hyde vs. Patterson, 1 Abb., 248 ; Utica City Bank vs. Buell, 17 How., 498. This rule is, however, only applicable, in all its strictness, to patent defects. A motion directed to such as may be latent and undiscoverable upon the face of the papers served, may still be maintainable, notwithstanding a general appearance prior to their discovery. For instance, a defendant who, after service of summons only, has demanded a copy of the complaint, may move, on the ground of variance between the complaint and the summons, if then first discovered, provided he moves at once and with due diligence, on the discovery of such variance. Vide Voorhies vs. Scofield, 7 How., 51; Shafer vs. Humphrey, 15 How., 564. It has been even laid down that this particular objection of variance is not waived by a general appearance, after service of summons and complaint. Tuttle vs. Smith, 14 How., 395; 6 Abb., 329; Shafer vs. Humphrey, supra. A special appearance will, however, be the better course to adopt under these circumstances. Nor does appearance waive an objection which goes to the jurisdiction in matters of substance. Harriott vs. New Jersey Railroad Company, 2 Hilt., 262; 8 Abb., 284. But otherwise, as to one which is purely personal: Mahaney vs. Penman, supra. (b.) REMOVAL TO UNITED STATES COURTS. This proceeding is adoptable in that class of controversies in which the jurisdiction of the federal and state courts is concurrent, as above noticed, i. e., in controversies in which suit is brought against an alien, or by a citizen of this against one of another state. Being only admissible "at the time of entering an appearance," it presents itself naturally for consideration in the present section, as the adoption of the step, and the preparation of the papers, must necessarily accompany, and virtually precede that measure. The power for this purpose is conferred by the United States Judiciary Act, passed on the 24th of September, 1789, chapter XX., section 12. See Dunlop's Collection, p. 49 to 51. That section provides thus: CHAPTER XX. 12. That if a suit be commenced in any state court against an alien, or by a citizen of the state in which the suit is brought, against a citizen of another state, and the matter in dispute exceeds the aforesaid sum or value of five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of the court; and the defendant shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause for trial into the next Circuit Court, to be held in the district where the suit is pending (with special provisions as to the districts of Maine and Kentucky); and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of said process against him, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein; it shall then be the duty of the state court to accept the surety, and proceed no further in the cause, and any bail that may have been originally taken shall be discharged, and the said copies being entered as aforesaid, in such court of the United States, the cause shall there proceed in the same manner as if it had been brought there by original process. And any attachment of the goods or estate of the defendant by the original process, shall hold the goods or estate so attached, to answer the final judgment, in the same manner as by the laws of such state they would have been holden to answer final judgment, had it been rendered by the court in which the suit commenced. The requisitions of this section may be shortly stated, thus: 1. The case must be one in which the federal tribunals have jurisdiction. 2. The value of the matter in dispute must exceed $500, exclusive of costs. 3. The application must be that of the defendant. It must be made at the time of entering his appearance, and such appearance must be simultaneously entered. 4. It must be made by petition to the state court, and filed therein, praying as directed. 5. The facts necessary to bring the case within Nos. 1 and 2, must appear upon that petition to the satisfaction of the court. |