CLARK-HERRIN-CAMPBELL CO. v. H. B. CLAFLIN CO. et al., 218 F. 429

SHEPPARD, District Judge (after stating the facts as above). The rulings of the District Court are brought here on a petition for revision, and. the matter specifically complained of is the overruling of defendant’s objection to the maintenance of the suit against it in the Western' division of the district, since the defendant was an inhabitant of the [Delta division and had seasonably asserted its right to the venue of its domicile as provided in

section 53 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1101 [Comp. St. 1913, § 1035]): “When a district contains more than One division, every suit not of a local nature against a single defendant must be brought in the division where he resides.” Whether the provisos contained in the act creating the Delta division had been so far complied with as to establish the court at Clarks-dale for the issuance and return of process for that division, in the view we take of the record, it is unnecessary to determine.

It appears that the defendant did not content itself with objecting to the jurisdiction of the court, or stand on its alleged right to be sued in the division of its residence, but pleaded generally to the merits of the petition. Besides denying that it was indebted to petitioners, it went on to traverse the allegations of insolvency and the acts of bankruptcy charged against it. Clearly, therefore, its pleading was not to raise the question of jurisdiction alone, but also that of the merits of the case.

The proposition is so well settled by both federal and state authority that it is hardly necessary to do more than refer to one of the more recent statements of the law by the Supreme Court in Big Vein Coal Co. v. Read, 229 U. S. 38, 33 Sup. Ct. 696, 57 L. Ed. 1053: “It is the settled practice in the federal courts that an appearance may be made for the sole purpose of raising jurisdictional questions, without thereby submitting to the jurisdiction of the court over the action. Goldey v. Morning News, 156 U. S. 518 [15 Sup. Ct. 559, 39 L. Ed. 517]; Shaw v. Quincy Mining Co., 145 U. S. 444 [12 Sup. Ct. 935, 36 L.

Ed. 768]. It is true that where the defendant appears by motion and objects to the jurisdiction, and •also submits a question going to the merits -of the action, it being one of which the court had jurisdiction, there is a general appearance in the case which gives jurisdiction, as in St. Louis, etc., Ry. Co. v. McBride, 141 U. S. 127 [11 Sup. Ct. 982, 35 L. Ed. 659], where a demurrer was interposed, raising two grounds of jurisdiction and the third going to the merits of the cause of action, it was held that there had been a submission to the jurisdiction of the court. See. also, Western Loan Co. v.

Butte & Boston Mining Co., 210 U. S. 368 [28 Sup. Ct. 720, 52 L. Ed. 1101].” The record in this case discloses, moreover, that the defendant after pleading to the merits, went to trial on the issues made by the traverse to the petition for the appointment of a receiver, and it was held by this court in Edgell et al. v. Felder, 84 Fed. 69, 28 C. C.

A. 382, that an appearance declared to be special may amount in law to a general appearance and where the party pursues a course inconsistent with a special appearance it is equivalent to a waiver of all privileges and benefits the party might have had through an objection to the venue. The right to insist upon suit only in the district is a personal privilege, which a defendant may waive, and he does waive it by pleading to the merits.

If the case is one of which the court could take jurisdiction, such a pleading, notwithstanding any reservation therein to the pleader, waives all special or personal privileges of the defendant in respect to the particular court in which the suit is brought. St. Louis, etc., Ry. Co. v. McBride, 141 U. S. 130, 11 Sup. Ct. 982, 35 L. Ed. 659. If the court had jurisdiction' by reason of the waiver, as we have seen, it had authority, of course, to adjudicate the questions of al lowance of attorney’s fees and costs.

Apart from the question that the defendant has precluded itself by pleading to the merits, it appears by paragraph “g” of its voluntary stipulation to have agreed to abide the decision of the District Court as to the question of liability for costs and amount thereof. If there had been, no waiver evidenced by the record of the objection to the jurisdiction, it would ;be difficult to construe the effect of this agreement other than unqualified submission to the jurisdiction. Power to award costs to the prevailing party, if it were not given by the Bankruptcy Act, is inherent in courts of equity.

It is true the defendant was not adjudicated a bankrupt; it may have been that it preferred the settlement agreed upon, than to take chances on the result of a trial. We see no'abuse of the discretion vested in the court as to the allowance of costs, in the circumstances of this case. The petition 'will therefore be dismissed, and the findings of the court below affirmed.