UNITED STATES SUPREME COURT DECISIONS ON-LINE

A defendant defeated on the merits after having specially assailed the jurisdiction of the circuit court because of defective writ and service is not bound to bring the jurisdictional question directly to this Court on certificate under § 5 of the Act of March 3, 1891; he may take the entire case to the circuit court of appeals, and, on such appeal, it is the duty of that court to decide all questions in the record, and, if jurisdiction was originally invoked for diversity of citizenship, the decision would be final except as subject to review by this Court on certiorari.

Where the circuit court of appeals has refused to decide a question, this Court may either remand with instructions or it may render such judgment as the circuit court of appeals should have rendered, and where the new trial would, as in this case, involve a hardship on the successful party, it will adopt the latter course.

Where, under §§ 914, 918, Rev.Stat., the circuit court has adopted a rule of practice as to form and service of process in conformity with the state clubjuris

Page 210 U. S. 156

practice, it is not bound to alter the rule so as to conform to subsequent alterations made in the state practice. Under §§ 1109, 3948, 3949, Vermont Statutes, the service of process on a division superintendent in charge of the property attached belonging to a defendant railroad corporation held to be sufficient.

The plaintiff below, who is respondent in this Court, was in the service of the railroad company, petitioner, and in November, 1901, was injured by being knocked off a freight car at a place called Lyndon, in the County of Caledonia and District of Vermont. The car was one of a freight train moving in the railroad yard, and the plaintiff was struck, while on his car attending to the brake, by some portion of the iron switch staff, alleged to have been negligently built too high and too near the railroad track. The injury made it necessary to amputate one of the legs of the plaintiff just above the ankle. He sought to recover damages for the injury, and, to that end, this action was commenced by attachment in the Circuit Court of the United States for the District of Vermont.

The jurisdiction of the court was founded solely upon the diversity of citizenship, the plaintiff being a citizen of Vermont and the railroad being a citizen of Massachusetts and operating, as lessee, the Connecticut & Passumpsic Rivers Railroad Company in the State of Vermont, on which road the accident occurred.

The service of the writ was made upon the division superintendent at his office near Lyndon, in Vermont, and the attachment was executed by attaching at that place two locomotives, the property of the railroad.

The defendant appeared only for the purpose of filing a motion to dismiss the writ because of its form, and also for the purpose of filing a plea in abatement on account of the alleged defective service of the writ. The defendant's motion to dismiss the writ was denied, and a demurrer to the plaintiff's replication to the defendant's plea in abatement was overruled, the result of the whole being that plaintiff's writ and its service were both allowed to stand. clubjuris

Page 210 U. S. 157

The defendant then filed a plea to the merits, on which the parties went to trial, resulting in a verdict of $3,350 for the plaintiff.

The defendant took the case by writ of error to the circuit court of appeals, where the judgment was affirmed; but that court refused to decide the question of jurisdiction of the circuit court, which had been argued before it at the same time with questions upon the merits, on the ground that the circuit court of appeals had no jurisdiction to decide it.

On application, this Court granted a writ of certiorari. clubjuris

Page 210 U. S. 160