(dissenting). Error is assigned, among others, of the denial by the court below of the motion by the defendant to dismiss the action upon the ground that because the writ for the commencement of the action was not properly served on the defendant the court had no jurisdiction of the defendant.
*45The writ was dated April 25, 1904; was made returnable and notified the defendant to appear and answer at a term of the United States Circuit Court for the District of Vermont-to be held on the, 17th day of May, 1904; and was served by the marshal on the 2d day of May, 1904, by attaching property designated as the property of the defendant by one Folsom, its agent and division superintendent within the said district, and leaving a true and attested copy of the writ in Folsom's hands at his office in said district.
Upon the return day mentioned in the writ, the writ together with the marshal’s return was duly filed, and thereupon the defendant appeared specially for the purpose of the motion to dismiss and for the filing of a plea in abatement. The motion to dismiss was based upon the face of the writ and the marshal’s return of service. The plea in abatement alleged facts qualifying the statements contained in the return of the marshal, and in substance asserted that the attempted service upon Folsom was unwarranted by the provisions of the statutes of Vermont. After the court had denied the motion to dismiss and had decided in effect that the plea in abatement was bad, the defendant answered upon the merits.
The assignment of error which challenges the ruling of the court in refusing to dismiss the action presents the general question whether the court acquired jurisdiction of the person of the defendant. If the court did not by a valid service of an authorized process obtain jurisdiction, the judgment is subject to review on a writ of error taken directly to the Supreme Court. This proposition was considered and decided in Shepard v. Adams, 168 U. S. 618, 18 Sup. Ct. 214, 42 L. Ed. 602, where the case was one in which the summons required the defendant to appear and answer in a Federal Court of the District of Colorado within ten days from the time of service of the summons instead of thirty days as provided for the procedure of the state courts by the statutes of Colorado. Inasmuch as section 5 of the Act conferring jurisdiction upon this court, (Act March 3, 1891, c. 517, 26 Stat. 827 [U. S. Comp. St. 1901, p. 549]) provides that writs of error may be taken from the Circuit Courts direct to the Supreme Court in any case in which the jurisdiction of the Circuit Court is in issue, as well as in any case which involves the constitutionality of any law of the United States, or the validity or construction of any treaty, while section 6 provides that the Circuit Courts of Appeal established by the Act shall exercise appellate jurisdiction to review by writ of error final decisions in all cases other than those provided for in section 5, the question arises whether this court can properly undertake to decide whether there was jurisdiction in the court below. In United States v. Lee Yen Tai, 113 Fed. 465, 51 C. C. A. 299, we held that this court was not authorized to decide the validity or construction of a treaty; and in Fisheries Co. v. Lennen, 130 Fed. 533, 65 C. C. A. 79, following that judgment, we decided that an appeal presenting the question of the jurisdiction of the Circuit Court, as well as other questions relating to the merits of the controversy, did not authorize this court to pass, upon the jurisdiction of the court below. These two decisions were based upon our understanding of the decisions of the Supreme Court in United States v. Jahn, 155 U. S. 109; 15 Sup. Ct. 39, 39 L. Ed. 87, *46and Carter v. Roberts, 177 U. S. 496, 20 Sup. Ct. 713, 44 L. Ed. 861. Since these decisions, however, the Supreme Court has considered again the proper construction of sections 5 and 6 (26 Stat. 827, 828 [U. S. Comp. St. 1901, p. 549]) in American Sugar Refining Co. v. New Orleans, 181 U. S. 277, 21 Sup. Ct. 646, 45 L. Ed. 859, and I think it is apparent from its opinion that we misinterpreted the meaning. of its former decisions. I am now satisfied tha t unless we see fit to certify to the Supreme Court the question of jurisdiction, we have authority, and it is our duty, to entertain and decide it in all cases where the jurisdiction of the Circuit Court is invoked solely because of the diverse citizenship of the parties to the action.
In Amy v. Watertown, 130 U. S. 301, 9 Sup. Ct. 530, 32 L. Ed. 946 it was pointed out that although prior to the passage of the Act of June 1, 1872, it was always in the power of the Federal Courts, by general rules, to adapt their practices to the exigencies and conditions of the times, since the passage of, that act the practice, pleadings and forms and modes of proceeding must conform to the state law and to the practice of the state courts, except when Congress has legislated upon a particular subject and prescribed a rule. And the court also declared that “When a státe statute- prescribes a particular method of serving mesne process, that method must be followed; and this rule is especially exacting- in reference to corporations.”
The Act of June 1, 1872, now section 914 of the United States Revised Statutes [U. S. Comp. St. 1901, p. 684] does not require a Circuit Court' of the United States to observe a strict conformity in actions at common láw to -the practice and procedure existing at the time in such actions in the courts of the state within which the Circuit Court is held, but permits the Circuit Court to conform thereto “as near as may be.” As was said in Ind. & St. L. R. R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898: “This indefiniteness may have been suggested for a purpose; it devolved upon the judges to be affected the duty of construing and deciding, and gave them the power to reject, as Congress doubtless expected they would do, any subordinate provision in such 'state statutes which, in their judgment, would unwisely encumber the administration of the law, or tend to defeat the ends of justice, in their tribunals.” • In Shepard v. Adams (supra) a summons issued by thé United States District Court for the District of Colorado which required the defendant to appfear within ten days from the time of service was held to sufficiently conform to the statutes of Colorado regulating the practice of the state courts although those statutes' provided that the time within which a summons should require the defendant to appear was twenty days. This conclusion was reached because the summons by the Federal Court was issued pursuant to a rule of that court which was adopted when the existing statutes of the state prescribed that summonses should require the defendant to appear within ten days, but which rule was not changed to conform to a subsequent change in the statutes of Colorado. The court said: “We have a right to presume that the discretion of the District Court was legitimately exercised in both' adopting and, maintaining the rule in question.”' It is apparent from the reasoning of the opinion that the -summons-would have béen held'invalid if it had not been issued in pur*47suance of a rule of the Federal Court which conformed substantially when it was adopted to the state statutes.
The statutes of Vermont in force at the time of the issuing of the present writ, and for many days before, contained the following provisions applicable to the service of writs in actions like the present,
“Section 1088. Every writ and process returnable before the supreme and county courts, except as otherwise provided, shall be served within twenty-one days from the date of issuing the same, including the day of service, and excluding the day of issuing, and shall contain the following direction to the officer, viz.: ‘Fail not but service and return make within twenty-one days from date hereof.’ ”
“Section 1089. The party suing out such process shall cause the same to be entered and docketed in the county clerk’s office on or before the expiration of said twenty-one days, or the process shall on motion abate.”
“Section 1090. The defendant shall cause his appearance therein to be entered with the clerk on or before the expiration of forty-two days from the date of such writ.” The only rule of the Circuit Court of the District of Vermont which touches the case is rule 8 which was adopted prior to the enactment of these provisions and provides as follows: “All mesne process shall be returnable to the next regular term, if there shall be time for seasonable service thereof according to the laws of the state, otherwise it shall be returnable to the next regular term thereafter.”
There is nothing in the rule of the Circuit Court which impinges upon the statutory provisions, and these provisions require the writ to be served within twenty-one days from its date of issuing, and allow the defendant twenty-one days at least after service in which to appear in the action. The present writ was not served or attempted to be served on the defendant until the 2d of May, 1904, or fifteen days previous to the time at which the defendant by the writ was notified to appear and answer. I cannot escape the conclusion that the motion to dismiss should have been granted.
If process is not served pursuant to the required statutory time the service is nugatory unless cured by a voluntary appearance or waiver of the defendant. It was upon that ground only that the court assumed appellate jurisdiction in Shepard v. Adams. The defendant in the present case was deprived of the full opportunity to prepare its defense which the statute was intended to afford, and though it may have had in fact sufficient time, it was entitled to assert its statutory right. The denial of that right was error.
There is respectable authority for the proposition that if a defendant appears in order to take advantage of a defective process or service, and his motion to dismiss the suit on that ground is overruled, he cannot then answer and proceed to trial without making a virtual waiver of his objections. But the weight of authority is' to the contrary. “Where a special appearance is made in order to object to illegality in the service of process, or to urge any objection for which a special appearance is appropriate, such special appearance is not waived and converted into a general one by answering to the merits after the objections are erroneously overruled. It is only where the defendant *48pleads in the first-instance to the merits, without any special appearance, that objections to personal jurisdiction áre waived.” 2 Encyclopedia of-Pleading & Practice, 629. That this is the law of the Federal Courts sufficiently appears by reference to Harkness v. Hyde, 98 U. S. 476, 25 L. Ed. 237, and Southern Pacific Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942.
For these reasons I am of the opinion that the judgment should be reversed.