
    No. 141
    GRABLE, et al, v. KILLITS, District Judge SAME v. BACON BROS. CO.
    U. S. Circuit Court of Appeals, Sixth Circuit
    Nos. 3713, 3725,
    June 9, 1922
    For Full Opinion See 282 Fed. 185
    COURTS (1) No jurisdiction to enforce lien, without personal service — (2) Special appearance — (3) When motion is not a general appearance — (4) To contest .question of interest — (5) Amendment of motion to set aside service, is not — (6) Mandamus, —instead of slow process of appeal — (7) Lease, ex-tinguishment of purchase money — (8) No recession of contract, without personal jurisdiction..
   EPITOMIZED OPINION

KNAPPEN, Cir. J.:

Bacon Bros, brought a suit against Grable, individually, and grand president of the United Brotherhood of Maintenance of Way, and other labor unions, whereby a factory for the manufacture of mittens and various other clothes was sold and leased. The unions were to handle the output through what was known as their co-operative department. The company claimed that they had broken their contract; and that they owed considerable money. Suit was brought for the appointment of a receiver, and an injunction against the disposing of .the property and to establish a manufacturer’s lien and a purchase money lien. The defendants were all non-residents of the Northern District of Ohio, and service was attempted to be had under section 1039 U. S. Judicial Code. The defendant’s move to dismiss on account of lack of jurisdiction appearing specially only. This, as well as a motion to dissolve the receivership and injunctions was overruled. A move to dismiss the bill was also overruled. In each motion he continued to protest that he was appearing to object to the jurisdiction. After these motions were overruled, Grable brought a suit in mandamus against the district judge, to dismiss the receivership and for injunction. Held:

1. Section 1039 Judicial Code does not authorize the service for personal judgment for deficiency after lien on property exhausted.

2. A special appearance to object to jurisdiction from the entrance of an appearance.

3. A motion seeking dissolution of receivership and injunction is not a general appearance, even after motion is brought, when necessary, does not account for a general appearance.

4. An entry of an appearance for a question of intent implied and where the moving party makes a claim that his objection to jurisdiction over him will not amount to a general appearance.

5. Amendment of a motion to set aside service will not constitute a general appearance nor a defense on the merits after an erroneous refusal for the' court to set aside service does not waive the objection to jurisdiction.

6. When circuit court of appeals is proceeding to issue a mandamus to compel vacation of receivership orders, the defendants need not wait for slow process of an appeal for relief from invalid orders.

7. Where vendor had unpaid purchase money due 'him this is extinguished where purchaser makes lease to the vendor to the satisfaction of the vendor’s claim.

Attorneys — Geo. E. Brand and U. S. Bratton of Detroit, Mich., and Harold W. Fraser, Toledo,, for petitioners and appellants; Geo. D. Welles, Toledo (Tracy, Chapman & Welles, on brief), for respondent and appellee.

8. Without jurisdiction of a person, the court can only decree rescission of a contract to the extent that the title to the property involves the same.  