CASKEY et al. v. CHENOWETH, 62 F. 712

PAEDEE, Circuit Judge (alter stating the facts). The first matter for consideration is the jurisdiction of the circuit court over the plaintiffs in error. If the cause had remained in the state court, then, under the provisions of articles 1212-1245, Rev. St. Tex., as construed by the supreme court of ihat state, the appearance of the plaintiffs in error specially for the purpose of moving to quash the service upon (Item, or to quash the attachment issued in the case, would have been properly taken as a general appearance, fully conferring jurisdiction upon the court. See York v. Texas, 137 U. S. 15, 11 Sup.

Ct. 9; Kauffman v. Wootters, 138 U. S. 285, 11 Sup. Ct. 298. Irrespective of this, there is excellent authority for holding that the plaintiffs in error waived any objections to the service of the summons by appearing in the state court, and filing a petition for the removal of the cause to the United States court, and this notwithstanding the appearance was said to be specially for the purposes of removal. Sayles v. Insurance Co., 2 Curt. 212, Fed Cas. No. 12, 421 (opinion by Mr. Justice Curtis); West v. Aurora City, 6 Wall. 139; Bushnell v. Kennedy, 9 Wall. 387; Construction Co. v.

Simon, 53 Fed. 1 (opinion by Mr. Justice Jackson).

In the instant case, not only did the plaintiffs in error appear in the state court, and there file a petition for the removal of the cause, but the record shows that after the removal there was an appearance in the circuit court at Graham, which (so far as the record shows).was unqualified, for the purpose of having the cause removed to the circuit court at Dallas for trial, and that in the circuit court at Dallas the plaintiffs in error appeared, and filed an answer raising all the merits of the cause at the same time that they specially appeared, and moved to quash the attachment issued in the case.

It is true, the answer asserts that the plaintiffs in error reserved their rights as nonresidents of the state, and submitted themselves to the jurisdiction of the court only for the purposes of the answer. It is difficult to see how the plaintiffs in error, by appearance in the circuit court, could have more fully submitted themselves and their cause to the jurisdiction of the court. Submitting themselves to the jurisdiction of the court for the purposes of the answer was about all that any defendant could do in that behalf.

We understand the general rule to be that any appearance of a defendant in court, when sued, for any other purpose than to object to the sufficiency of the service upon him, and move to quash therefor, is to be taken and held as a general appearance in the case. Certainly, when a defendant who has not been strictly served according to law comes into court in such case to obtain relief, or the benefit of a privilege outside of the sufficiency of the service, he ought not to be heard thereafter to say that the court has no jurisdiction over the case because he has not been properly notified.

In this case it appears that the plaintiffs in error first procured the removal of the cause from the state court to the circuit court at Graham, then a removal from the circuit court at Graham to the circuit court at Dallas, then filed an answer, and thereafter procured the attachment in the case to be dissolved, and yet, after all these proceedings, object that the original service of citation upon them was insufficient in law to bring them into court.

On the merits of the case, the plaintiffs in error complain of the instructions of the court, in directing the jury, as a matter of law, that the plaintiff below was entitled to a verdict for $1,000, the amount he had paid the defendants below, with 6 per cent, interest per annum from the date it was paid, and in refusing to instruct the jury as follows: “If the jury believe from the evidence, under the instructions given, that the plaintiff failed to comply with the contract on his part, and if you further believe from the evidence that the defendants were ready, able, and willing to comply with the contract at any one time when plaintiff should comply with the contract on his part, then your verdict must be for the defendants.” It appears that the trial judge was of the opinion — undoubtedly, from his view of the evidence in ¡he case— “That the defendants had repudiated the contract, and kept the SI,000, when the plaintiff was trying to carry it out; and that too after he had substantially furnished abstracts of his title.

But the plaintiff failed on trial to show-title in himself, at the date of the contract, to the lands he was to convey, from the sovereignty of the soil.” As we understand this, it means that the plaintiff in the court below could not give title to the lands he had agreed to convey, and yet, while he was trying to carry out the contract, the defendants repudiated the same, and therefore the plaintiff below could recover back the amount he had paid under the contract, and the defendants below could recover no damages for the failure of the plaintiff to perform.

It is clear that the plaintiff below was not entitled to recover damages from the defendants below for noncompliance with the contract of sale, since he had failed to comply with the contract on his part. In this state of the case, -whether the plaintiff below was entitled to recover hack the moneys paid by him under the contract, and whether the defendants were entitled to recover damages for breach of the contract, depended upon the conduct of the parties, as shown by the evidence in the case.

The bill of exceptions recites that substantially all the evidence offered and introduced by either party is therein recited. While there is considerable evidence in the hill tending to show that the defendants below repudiated the contract, and practically rescinded it, prior to the actual default of the plaintiff below, yet there is also considerable evidence; tending-' to show the contrary.

From this state of the evidence, as we view it, the question of default on the part of the defendants below should have been submitted to the jury, with instructions that if they found the defendants in default, or that they had repudiated or rescinded the contract prior to the actual default; of the plaintiff below, then he might recover back the amount paid under the contract (see Sedg. Dam. § 658; Suth.

Dam. § 585); if, on the other hand, they should find from the evidence that the defendants below w-ere not in default, then they would be entitled to recover such damages as directly flowed from the breach of the contract, and were proved by the evidence in the case. We are of the opinion that the assignments of error in relation to the instructions of the court are well taken. The judgment of the circuit court is reversed, and the case remanded, with instructions to grant a new trial.