Page:Federal Reporter, 1st Series, Volume 5.djvu/404

 393 FEDERAL REPORTKE. �to be no part of the case for any other purpose than to effect the removal of the case from the state court to this court in the precise condition said case presented in the state court at the time the application for removal was presented to that court. That application cannot certainly be taken as a con- sent to submit to the jurisdiction of the state court ; and, as I understand the doctrine of appearance taking the place of or dispensing with the use of process to bring parties under the jurisdiction of the court, there must be some action of the party which reasonably evidences a voluntary submission to the jurisdiction of the court over the person of the party. In this case the defendant's first action in the state court is to except to the process by which it was attempted to give that court jurisdiction of the person of the defendant. And the £rst action of the defendant after the case reached this court was to interpose that exception here. I am, therefore, constrained to hold that the defendant has not waived the use and service of proper process of summons or citation in this case. �It becomes necessary, then, to consider the other question : Has the defendant been properly served with due process of summons or citation in this case ? Service was attempted to be made under the act of the legislature of this state of 1875, "prescribing the mode of service in certain cases," (Session Acts 1875, p. 170,) by having a certified copy of the petition and a writ called a "citation," directed "to any person resid- ing in Mobile county, Alabama, competent to make oath of the fact of service hereof," served on the defendant by deliv- ering to the president of the defendant company, in said Mobile county, Alabama, said certified copy of petition, and a true copy of said writ, by a person who makes oath that he made said delivery. No affidavit that the defendant was a non-resident was made by any one, and no publicaltion of any writ of citation was made, or any method of service attempted other than that above indicated. But, in the view I feel con- strained to take of the question under the authorities, it is wholly immaterial whether the method pursued in this case meets the requirements of the act of 1875, above reterred to. ����