
    No. 287
    SALMON FALLS MFG. CO. v. MIDLAND TIRI & R. CO.
    U. S. Court of Appeals, Sixth Circuit
    No. 3706.
    Dec. 15, 1922
    285 Fed. 214
    PROCEDURE — (1) Personal judgment where juris diction secured by attachment — (2) Defendant’ appearance to object not submission to jurisdictioi —(3) Special appearance does not authorize per sonal judgment — (4) Adjudication regarding at tached property does not bar action against de fendant personally — (5) Plaintiff not required ti produce books — Dismissal only remedy for failur —(6) Seller cannot change draft without notifyin; buyer — (7) No exceptions being taken to instruc tions, request for further necessary — (9) Rulin; on new trial not reversible.
    In Error to U. S. District Court
   KNAPPEN, J.

Epitomized Opinion

The Rubber Co. brought suit against the Mfg. Co in an Ohio state court for failure to deliver certatfr goods contracted for. When the suit was begun ar attachment was issued on funds of the Mfg. Co amounting to $2,000. Later the suit was removéc to a federal court. The Mfg. Co. for the purpose of limiting the recovery to the amount attached appeared, specifically for that purpose, and denifec jurisdiction. The request to so limit the scope oi the hearing was not passed upon and a verdict foi the Rubber Co. was rendered for $30,000. The Mfg. Co. prosecutes error to this court.

Held by Circuit Court of Appeals in amending verdict and remanding case to District Court with directions to enter a new judgment not inconsistent with this opinion:

1. Personal judgment cannot be rendered against a foreign corporation where jurisdiction is secured over it by attachment of property, with no personal judgment.

2. A defendant’s appearance in court for the sole purpose of objecting to its jurisdiction over its person, was not an appearance in action. \

3. Thé question of general appearance is one of intent, actual or implied, but its purpose must be clear and unequivocal. Special appearance to ■ protect attached property does not authorize personal judgment.

4. On motion to limit relief to the volume of the attached property, an adjudication that it is not liable does not bar proceeding against defendant personally.

5. The production of plaintiff’s hooks would not have sustained the defense and a refusal to require the production of the books was not prejudicial to plaintiff. The. only remedy given defendant for plaintiff’s failure to produce hooks called for is the dismissal of plaintiff’s suit'.

Attorneys — W. Lloyd Allen and Bayley, Simmons b De Witt, for Mfg. Co.; Lowry, F. Slater, L. F. McGrath and J. B. Shepler, for Rubber Co.

6. When the seller of goods stated that a three-lay draft would be drawn for the purchase price, t was a breach of the seller’s duty to draw a sight Iraft without giving buyer notice that sight draft íad been drawn.

7. Where no exception to instruction is taken, •equest for further instructions as to particular ;estimony held necessary.

8. A motion for new trial on the ground of newly liscovered evidence is addressed to the sound dis-iretion of the trial judge, and his ruling cannot >e reviewed in the absence of abuse thereof.  