
    Thomas Farmer, Resp't, v. The National Life Association of Hartford, Conn., App'lt.
    
    
      (Court of Appeals,
    
    
      Filed May 5, 1893.)
    
    1. Service—Foreign insurance companies—Waiver of defects.
    The summons in this case was mailed to the superintendent of the insurance department,- who admitted service thereof. Thereafter defendant procured a removal of the cause to the federal court, but it was subsequently remanded. Held, that by procuring such removal the defendannecessarily submitted itself to the jurisdiction of the state court, and waived any defect in the service of the summons.
    3. Same.
    Where a defendant becomes an actor in the suit and institutes a proceed ing which has for its basis the existence of an action to which he must be a party, he thereby submits himself to the jurisdiction of the court, and no disclaimer which be may make on the record, that he does not intend to do so, will be effectual to defeat the consequences of his act.
    Appeal from order of the supreme court, general term, second •department, affirming order denying motion to set aside service of a summons.
    
      Roger Foster, for app'lt; James P. Judge, for resp't.
    
      
       Affirming 51 St. Rep., 183.
    
   Maynard, J.

The defendant, a foreign life insurance corporatipn, as a condition of its admission to do business in this state under chapter 846 of the Laws of 1884, appointed, in writing, the superintendent of insurance as its attorney, upon whom all legal process against it might be served with the same effect as if it was a domestic corporation, and empowered him as its attorney to receive and accept service of such process, and declared that such •service should be deemed valid personal service upon it.

On December 1, 1891, the attorney for the plaintiff issued the summons and complaint in this action, brought to recover for a •death loss upon one of the defendant’s policies, and sent it to the -superintendent of insurance, by mail, with a request that he admit service thereof. On December 8, the superintendent returned the papers to the plaintiff, with the statement that he admitted service of process on him as attorney for the defendant, made by the plaintiff’s attorneys in behalf of plaintiff, and that he had sent to the defendant, by registered mail, a copy of the papers served on him.

On December 21st the defendant filed the petition and bond and took the other proceedings required by the federal judiciary act for the removal of the cause into the United States circuit court for the eastern district of New York, and thereupon the record was removed into that court, and filed with its clerk, and the action was pending therein until January 8,1892, when it was remanded to the state court. On April 15th the defendant moved to set aside the service of the summons and complaint, on the ground that it had not been personally served on the superintendent of insurance, and upon the further ground that his admission of service was fatally defective, because it did not comply with the essential requirements of § 434 of the Civil Code, which prescribes the contents of a valid admission. The general term, has affirmed the denial of this motion by the special term, and the defendant has appealed to this court.

It is unnecessary to consider what force, if any, the objections to the mode of service of process in this case and to the sufficiency ■of the admission of service might have had if they had been seasonably made, for we think it must be held that the defendant necessarily submitted itself to the jurisdiction of the state court and waived any defect there may have been in the procedure to acquire jurisdiction of its person, by the proceeding which it initiated and consummated for the removal of the action into the United States circuit court. There could be no transfer of the cause from the state to the federal jurisdiction unless there was an action pending. The federal statute required it, and the petition must so allege and must also aver that the petitioner is a party to the action. The legal consequences of this acknowledgment of and submission to the jurisdiction of the state court cannot be avoided by the declaration which the defendant’s attorney made while engaged in the act, that his appearance was special and only for the purpose of effecting the removal of the cause into the federal court.

There are undoubtedly cases where the right of a defendant to' move to vacate service of process upon him may be saved by a special or qualified appearance for the purpose of making some motion or taking some step in the action which does not amount to a recognition of the jurisdiction of the court of his person; but the rule adopted in such cases has no application where the defendant becomes an actor in the suit and institutes a proceeding which has for its basis the existence of an action to which he must be a party. He thereby submits himself to the jurisdiction of the court, and no disclaimer which he may make upon the record, that he does not intend to do so, will be effectual to defeat the consequences of his act. As was held in Ballard v. Burrowes, 2 Robt., 206, under such circumstances the limitation which he attempts to place upon the effect of his conduct is void, because incompatible with the purpose of his act

We are aware that there are many cases in the federal circuit courts which hold that after removal the defendant may move to dismiss the action because of defective service of process in the state court, and that his appearance there for the purpose of taking the necessary proceedings to remove the action is not a waiver of his right to make the motion, especially if he has not appeared generally in the state court. But these decisions apparently rest upon the ground that, by the provisions of the act of congress, when the removal is effected the federal court is authorized to proceed with the action as if it had originally been brought in that court, and that the defendant has a right to have every question which involves the authority of the plaintiff to implead him determined in the federal jurisdiction.

If this were not so, it is urged that it would be within the power of the state court to confer jurisdiction of the person upon the federal court by an improper service of process, and the defendant would be precluded from obtaining the judgrnent of the; federal court upon that question. It is thought that the integrity of the federal jurisdiction requires the enforcement of such a rule of practice. But the reasons for the rule cease to exist when the question arises in the state court, and it cannot there be observed consistently with a proper respect for its own authority.

But the federal courts have by no means been unanimous upon this point. Bushnell v. Kennedy, 9 Wall, 387-393; Sweeney v. Coffin, 1 Dill, 73-75; Sales v. N. W. Ins. Co., 2 Curtis C. C., 212. In the most recent reported case on the subject, of McGillin v. Claflin, 52 Fed. R., 657, Judge Eicks says that it is “ a question, as to which there has been great diversity of opinion in the reported cases from the various circuit courts of the United States.”" In Sales v. N. W. Ins. Co., supra, Judge Curtis denied a motion to dismiss the action for defective service in the state court, making use of this language: “ The defendant comes in, becomes the actor, treats the suit as one properly instituted, removes it to another court, and enters it there, and then says he was not obliged, to appear at all, and the state court in effect had no suit before it.. This, I am of opinion, he cannot do. * * * The act of congress allows defendants to remove actual and legally-pending suits from the state courts. If this were not such a suit, he should not-have brought it here. By bringing it here he voluntarily treats-it as properly commenced and actually pending in the state court, and he cannot, after it is entered here, treat it otherwise.” The principle thus formulated is, we think, sound, reasonable and just. It cannot be tolerated that a defendant shall question the jurisdiction of a state tribunal over his person after he has effected a transfer of the cause to another court, by placing upon its records an affirmation under oath of the pendency of the action, and of his relation to it as a party, and obtained the approval of the court of the bond required as a condition of its removal. If the cause is subsequently remanded, he cannot be heard to say that his own proceedings have in effect been coram non judice.

The order must be affirmed, with costs.

All concur.  