
    LOWE et al. v. SWINEHART TIRE & RUBBER Co.
    (District Court, S. D. New York.
    February 18, 1914.)
    1. Attachment (§ 251)—Conclusiveness of Adjudication.
    The dissolution of an attachment on motion is not a final adjudication of any fact in the action, even though it depends upon a provisional inquiry into the merits, and involves consideration of matters which would afterwards arise upon the trial.
    [Ed. Note.—For other cases, see Attachment, Cent. Dig. §§ 890-892, 896, 898; Dec. Dig. § 251.*]
    
      2. Corporations (§ 669)—Foreign Corporation—Action—Special Appearance.
    Where defendant, a foreign corporation, appeared specially and procured the vacation of an attachment on the ground that the attachment papers did not state a cause of action, it was not thereby precluded from moving to dismiss the complaint on the ground that the court had no jurisdiction over defendant; since, while the submission of any point to the decision of the court gives it power to make that decision finally effective by a complete disposition, the determination invoked by defendant was one which, if unsuccessful, would not have been conclusive, and it was therefore not in the position of one who invokes the court to decide a point while reserving the right to make the decision nugatory if unsatisfactory.
    [Fd. Note.—For other cases, see Corporations, Cent. Dig. §§ 2641, 2642; Dec. Dig. § 669.*]
    At Law. Action by John Z. Lowe and others against the Swine-hart Tire & Rubber Company. On motions by defendant to dismiss, and by plaintiff for leave to enter judgment.
    Motion to dismiss granted, and motion to enter judgment denied.
    The plaintiff began the action by attachment in the state court against the defendant, a foreign corporation. The defendant, appearing specially for the purpose, removed to this court, and then moved to vacate the attachment, upon four grounds: First, that the court had no jurisdiction; second, that the attachment papers were insufficient; third, that no grounds were shown for an attachment; fourth, that the moving papers did not set forth a cause of action. Annexed to the defendant’s papers was an affidavit setting forth matter relevant to the question of damages. Judge Ward vacated the attachment because the paiiers did not, in several particulars, state a cause of action. Thereafter the defendant moved to dismiss, and the plaintiff for leave to enter judgment.
    Joseph M. Hartfield, of New York City, for plaintiff.
    Stapleton & Briggs, for defendant.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
      For other cases see same topic & § nvmbeb in Deo. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   HAND, District Judge

(after stating the facts as above). It would not be asserted, I suppose, that the decision upon the motion to dissolve the attachment was a final adjudication of any fact in the action. No one supposes that it dispenses with proof upon the trial, or that any one may use it to help him out in the contest over the merits of the controversy. All it decides is whether the defendant's property shall be held pendente lite and to await the final decision of the cause itself. It is quite true that that question itself may, and in this case did, depend upon a provisional inquiry into the merits, and involved consideration of matters which would afterwards arise upon the trial, but that inquiry and that consideration are informal in character and inconclusive in effect.

Courts will, of course, not let suitors play fast and loose; they will not offer themselves for only so long as.the result suits the defendant, and so they have jealously insisted that the submission to their decision of any point in the cause shall entrain their power to make that decision finally effective by a complete disposition. Such an implication is necessary to prevent the abuse of the right of recourse to the courts. We sometimes say that the defendant, by contesting, a point in the cause, has consented to the jurisdiction, but this is a fiction, as is proved by the fact that the most elaborate precautions to show the contrary do not avail the defendant.

, Where, however, the question contested is of the court’s having personal jurisdiction, obviously the defendant must have the power to make a contest, or the matter will be taken against him as of course, and so the rule is well settled in such cases. If the question be to release his property from attachment, there are undoubtedly cases which hold that, even for that limited purpose alone, he raises at his peril any question which would be relevant to the main controversy (Raymond v. Nix, 5 Old. 656, 49 Pac. 1110), yet it seems hardly just to expose a defendant to that choice. The determination which he invokes is not, as I have shown, one which, if1 unsuccessful, would in any event be conclusive. It would not bind him if he afterwards intervened to contest, nor his property if he allowed a default to he taken, since no determination is in that case ntecessary. He is therefore not in the position of one who invokes a court to decide a point in the controversy, while reserving his right to make the decision nugatory if it prove unsatisfactory. In the case of Davis v. C., C., C. & St. L., 217 U. S. 157, 174, 30 Sup. Ct. 463, 54 L. Ed. 708, 27 L. R. A. (N. S.) 823, 18 Ann. Cas. 907, the Supreme Court decided that a motion to vacate an attachment supported by three affidavits did not constitute an appearance. It is true that the invalidity of the attachment did not touch the merits; hut, as I think I have shown, it never can, since any decision involves only the question of the release of the property from levy. I think that therefore the distinction is not good which would limit the right to vacate the attachment only to questions which will not be considered in disposing of1 the cause.

The motion j;o dismiss will be granted; that to enter judgment denied.  