Opinion of the Court.

amount of such one half of expenditures." It further charged that if the defendant were liable under the contract it was liable only for the reasonable and necessary expenditures to preserve and protect the property, and that such expenditures must have been made for the benefit of the common interest of both parties to preserve and protect them.

We see no reason to doubt that the case was properly submitted to the jury. In determining whether there was a binding contract between the parties arising from the letter of the plaintiff of October 24, 1883, and the answer of the defendant thereto, the jury were at liberty to consider, in connection with those letters, the subsequent correspondence and the conduct of the parties in respect to the common property, and the interpretation put upon them by the parties themselves. Not only was the canal visited and examined by the agents of both parties acting in concert, but, from the beginning to the end of the correspondence there was no refusal to cooperate on the part of defendant, no disavowal of an agreement between them, nor any expression of dissent as to the propriety of what had been done toward the preservation of the property. It is true that the defendant was not making use of the canal, but its preservation from ruin was an object of as much importance to one party as to the other. The conduct and letters of the defendant were such as to justify the plaintiff in believing that the repairs that it was making to the canal were assented to and approved by it, and it was, at least, a question for the jury to say whether the plaintiff was not justified in believing that the defendant would pay its proportion of them, and whether the two first letters were not treated by both as embodying the arrangement between them.

We see no error in the record of which the defendant is entitled to complain, and the judgment of the court below is therefore

Affirmed.

MR. JUSTICE PECKHAM was not present at the argument, and took no part in this decision of this case.

Statement of the Case.

WABASH WESTERN RAILWAY v. BROW.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH

CIRCUIT.

No. 285. Submitted November 6, 1896. - Decided November 80, 1896.

The filing by the defendant in an action in a state court of a petition for its removal to the proper Circuit Court of the United States does not prevent the defendant, after the case is removed, from moving in the Federal court to dismiss it for want of jurisdiction of the person of the defendant in the state court or in the Federal court.

JOSEPH Brow commenced suit in the Circuit Court of Wayne County, Michigan, against the Wabash Western Railway to recover the sum of twenty thousand dollars for personal injuries, caused, as he alleged, by defendant's negligence, by the service, September 24, 1892, of a declaration and notice to appear and plead within twenty days, on Fred J. Hill, as agent of the company, which declaration and notice were subsequently filed in that court. On the 7th of October defendant filed its petition and bond for removal in that court, and an order accepting said bond and removing the cause to the Circuit Court of the United States for the Eastern District of Michigan, and directing the transmission of a transcript of record, was entered.

The petition alleged that the matter and amount in dispute exceeded, exclusive of interest and costs, the sum or value of two thousand dollars, and that the controversy was between citizens of different States; that petitioner was at the time of the commencement of the suit and still was "a corporation created and existing under the laws of the State of Missouri, having its principal business office at the city of St. Louis in said State, and a citizen of the said State of Missouri, and a resident of said State, and that the plaintiff, Joseph Brow, was then and still is a citizen of the State of Michigan, and a resident of the county of Wayne in said State."

The record having been filed in the Circuit Court of the

Statement of the Case.

United States for the Eastern District of Michigan, a motion to set aside the declaration and rule to plead was made in the cause in these words and figures : "And now comes the Wabash Western Railway, defendant (appearing specially for the purpose of this motion), and moves the court, upon the files and records of the court in this cause, and upon the affidavit of Fred J. Hill, filed and served with this motion, to set aside the service of the declaration and rule to plead in this cause, and to dismiss the same for want of jurisdiction of the person of the defendant in the state court from which this cause was removed, and in this court." The affidavit was to the effect that Hill, on September 24, 1892, was the freight agent of "the Wabash Railroad Company, a corporation which owns and operates a railroad from Detroit to the Michigan state line, and was not an agent of the Wabash Western Railway, defendant in this suit"; and that on the day aforesaid the Wabash Western Railway "did not own, operate or control any railroad in the State of Michigan, or have any officers or agent of any description therein, and did no business and had no property and no place of business in said State; and that on said day deponent was not a ticket or station agent of the said defendant, nor an officer or agent of the defendant of any description."

The motion was denied by the Circuit Court, with leave to defendant to plead within ten days, and defendant excepted. Thereafterwards defendant filed a plea in said cause as follows: "And the said defendant appearing and pleading under protest and excepting to the refusal of the court to grant its motion to dismiss, by Alfred Russell, its attorney, comes and demands a trial of the matters set forth in the declaration of the said plaintiff."

The cause was subsequently tried and resulted in a judgment in favor of Brow for $2500 and costs. The bill of exceptions sets forth that, when the case came on for trial, "the defendant company protested in open court against being forced to go to trial and for cause of protest showed to the court that the defendant was a corporation organized in the State of Missouri, and that at the time of the commence

Argument for Defendant in Error.

ment of this suit, the defendant had no agent, business, property, officer or servant in the State of Michigan, and had not been served and had not appeared." The court overruled the protest and defendant duly excepted. An instruction embracing the same point was also asked by defendant and refused, and an exception taken.

A writ of error was allowed from the Circuit Court of Appeals for the Sixth Circuit and the cause heard by that court. Among the errors assigned were the refusal of the Circuit Court to grant the motion to set aside the service of declaration and rule to plead and to dismiss the cause; the compelling of defendant to go to trial against its protest, the court having no jurisdiction over its person; and the refusal of the instruction presenting the same point. The opinion is reported in 31 U. S. App. 192, and fully discusses the objection to the jurisdiction of the state court over defendant's person, ruling that the filing of a petition for removal to the Circuit Court effected a general appearance, and that it was too late after such removal had been perfected for it in the Circuit Court to attempt to plead that that court had no personal jurisdiction over the company by virtue of the process issued. The case was also considered upon the merits and the judgment was affirmed. Thereupon application was made by plaintiff in error to this court to issue a writ of certiorari to the Circuit Court of Appeals, which was granted, and the record having been sent up, the cause was submitted on briefs.

Mr. Alfred Russell for plaintiff in error.

Mr. Edwin F. Conely for defendant in error.

The plaintiff in error did not allege in its petition of removal that it was unable to obtain justice in the state court, neither does the petition refer in any manner to the service on the defendant made in the state court; but it prays for the removal of the cause on the merits of the controversy, in which the matter in dispute exceeds the sum of two thousand dollars, and for no other reasons whatever.

As it did not file in the state court a special appearance or

VOL. CLXIV-18

Argument for Defendant in Error.

a motion for the purpose of attacking the service made there, there was nothing in the record removed which could be reviewed or revived in the Federal court except the petition of removal, which with the declaration, comprised the entire record. Nor can it be inferred that it was the intention of the railway to attack the service after removal in the face of the petition, which refers only to a controversy on the merits which exceed the sum of two thousand dollars. This petition for removal as the case now stands could not be held an appearance in the state court for the purposes of attacking the service in that court on a motion made after a removal to the Federal court.

The following cases are cited in support of the position that there is a conflict among the different circuits upon the question of allowing service in the state court to be attacked after removal to the Federal court, counsel claiming that the majority of these circuits sustain his position: Parrott v. Alabama Gold Life Ins. Co., 5 Fed. Rep. 391; Blair v. Turtle, 5 Fed. Rep. 394; Small v. Montgomery, 17 Fed. Rep. 865; Пlendrickson v. Chicago, Rock Island &c. Railway, 22 Fed. Rep. 569; Miner v. Markham, 28 Fed. Rep. 387; Golden v. Morning News, 42 Fed. Rep. 112; Clews v. Woodstock Iron Co., 44 Fed. Rep. 31; Reifsnider v. Amer. Pub. Co., 45 Fed. Rep. 433; Forrest v. Union Pacific Railway, 47 Fed. Rep. 1; O'Donnell v. Atchison, Topeka &c. Railway, 49 Fed. Rep. 689; McGillin v. Claflin, 52 Fed. Rep. 657.

In all these cases there was either a motion or special appearance by defendant for the purpose of setting aside the service in the state court which formed part of the record removed, and many of these cases would seem to allow defendant to revive or renew such motion or special appearance, as being part of the record removed, the cause proceeding under the act of 1887 on the record removed only. The decisions, however, do not contemplate the taking up of any proceedings in the Federal court not contained in the record removed, and none of these cases can be compared with the present one, where the record consists of the petition for removal only, the contents of which we have referred to.