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f"";/":".,1!1 ~ '• ·~ X-)8)4 IN THE DISTRICT COURT OF THE UNITED STATES For the District of Oregon•. ) ) ) ) ) ) ) ) ) ) ) ) ) BROOKINGS STATE :SANK, a.n Oregon :Banking Corpora.tion, Plaintiff' v. FEDERAL RESERVE :SANK OF S.AN FRANCISCO, A Federal Reserve :Banking Col"pora.tion, Defendant. T. T. :Sennett, Ma~shfield, ,ZulY }0. 1923 • Oregon, John F.• Reilly, Portland, Oregon, for Pl&.intiff; Albert c. Ag;>.ew, Sa.n Francisco, Ca.l .. , for Defenda.nt .. · WOLVERIJX)N, District Judge: In this ease there is diversity of citizenship. ~estion is also involved.. A federal So it cannot be said tha.t jux-isdiction is fo'lm.ded only on the fa.ct of diversity of citizenship.. The defendant is a. Federal Reserve :Bsnkr With its head office and principal place of business in Sa.n Francisco, Ca~ifornia, a.nd with branch banks elsewhere 1 one of these being located a.t Portl9l'ld Oregon.. defendant in this court, in tort. Pla.intiff ha.s sued the Service wa.s had upon Frederick Gl'eenwood ,manager of the Po:rtland Branch, within this jut"isdiction, on November 18, 1922.. On .November 23rd, the a.ttorney for the defendant bank wired from San Francisco to the attorney for plaintiff, e.s follows: "I refer to complaint for damases Brookings :Bank 38S.inst Federal Beserve ·Bank filed in Portland NOVember ei@hteenth. Owing to pressul'e of other work and enga.gements in Sea.ttle and Salt Lske it will be difficult if not impossible for ... 2- X-3834 tre to give consideration to prepa:ca.tion of answer or other pleading a.t this tin;e, ViJill you kindly give stipula.tion tha.t defendant ma.y have thirty da.ys from Novembar eighteenth nine teen twenty two within which to demu.r, a.ns.ve r or file such other pleading to compla.int or otherwise a.s defendant ma.y be advised by counsel. Will a.pp:recia.te your courtesy in this COlmection. Plea.se wire reply quickly." On the same da.y a.ttorney for pla.intiff wired: "You:r request November twenty third re Brookings :Bank Case is a. greed to. Pre pare written st ipula.tion if you wish, f orw(;}.rd it to me and I will sign. " Also on the same da.y, a.ttorney for defendant rr:a.iled to a.ttorney for pla.intiff a. stipula.tion, entitled in the ca.use pending, of the following tenor;"Stipula.t ion extending time to plead. "It is hereby stipulotad by and between respective counsel for the a.bove named pa.rties tha.t the defendant, Federal Reserve Bank of San :E'ra.ncisco, may take and have to and including the tvventy-eighth day of December, 1922, within which to answer the compla.int on file in the a.bove entitled a.ction, or to demu.r thereto, or to rrake such other motion or motions in respect thereto, or in respect to the cause of a.ction stated therein, a.s sa.id defendant, Fede:ral Raserve Bank of San Francisco, may be advised by counsel." The stipula.tion wa.s signed by a.ttorney for pla.intiff, a.nd returned to counsel for defenda.nt, who thereupon signed it, a.nd rna.iled it to the clerk of the court, with directions: 1 hand you herewith stipula.tion extending tirne for oefendant to plead in the a.bove entitled w.a.tter. I will a.pp:recia.te it if you will present the s tipula.tion to the court, ha.ve it approved and fila." 11 When the stipula.tion wa.s received, the court's a.ttention was ca.lled to it by the clerk, a.nd the following order wa.s nl9.de respacting it: "Now a.t this day upon n:otion of defendant on file herein, said defendant appearing by lvl't'. A. c.' Agnew, of counsel, It is .ordered tha.t said defendant be and it is hereby a.llowed to and X-3834 -3- including Thursda¥ Decembe.r 2S, 1922 ~ to ans-.er, demur, or file such other motion a.s it may be advised • 11 t~t It is apparent the o~er, ·; counsel for defendant, a.s it relates to ma.de no other a.ppea.rance in court than is evidenced by his letter of' instructions to the clerk. On December 26, 1922, the de• 1 . fendant, a.ppea.ring specially 9Y its attorney, moved the court to dismiss the ca.use, for the rea.s()~ that the defendant is not an inha.bitant within the district in which the a.ction ha.s been instituted. ~e fendant wa.i~ed crucial questipn presented for decision is whether de.jurisdiction over 1 ts person by entering into, and causing to be filed with the clerk of the court, the stipula.tion for an extension of time within whiCh to plea.d. It ought not to be controverted tha.t a. stipula.tion between parties to a. suit or a.ct ion, filed in court , has the sa& effect and potency a.s an order of' the court, agreed to 'by the pa.rties, to the ssm3 pU'l"pose. The purpose of the pa.rties is subserved in either event, u, in the present oa.se, the time. wa.s enlarged in yjlioh the defendant .wa.s entitled to answer, etc. 'lhe Jurisdiction in controversy here perta.ins to the person, ' a.nd not to the subject-matter. the subject-attar. Clearly, the court ha.s jurisdiction of The court b_a,:ying such jurisdiction, the dafenda.nt • ma:y waive jurisdiction C?var the person, a.nd the question involved here is whether it has d()ne so. ''Wa.ivar is the intentional relinquishment of s. know right•" Wa.ters vs Central Trust .co., 126 Fed. 469, 472• The :taking of any proceeding, other than a. special a.ppa.a.rance ..~ ... ) 1 -4and a. motion or plea. founded thereupon, is equiv~lent to a. genera.J. a.ppearance and a. submission of the defendant's person to the ju:risoi.ct:i.on of the cou:rt." Foster's Federal Pra.ctice, Vol. I (Fourth Edition), p.459· So, where counsel a.ppea.red and moved to dismiss tha bill for w~s want of jurisdiction, and a.lso for want of equity, it held to be a. wa.iver of a. non-resident's privilege, and to amount to a. volunta.ry a.pJones v • .Andrews, 10 Wall. 327. pea.rance. a.pplica.tion for an extension of time to pl<:Ja.d is a. recognition of the jurisdiction of the court over the person and constitutes a. genera.l appea:rance. 11 4 C.J, Sec. 31, P• 1339· 11.An In Hupfeld v. Automa.ton Piano Co • , 66 Fed • 788, the defendants, non-residents, a.pplied to the court and obta.ined an extension of time to plead, answar, derrro.r, o.r take such other a.ction a.s might be advised, and it wa.s held, on motion to dismiss on the ground of want of jurisdiction, tha.t obta.ip.ing such extension of time wa.s the equivalent of a. general ~ppeara.nce. See, also, to the same purpose, Brigs;s v. Stroud, 58 Fed • 717; Waters v. Centra.l Trust Co., 126 Fed. 469, 47lj !Au:t'phy .v • Herring-Ha.ll-Marvin Safe Co., 184 Fed. 495; Everett Hy., Light & Power Co. v. United Sta.tes, 236 Fed. 806, SOS. Attention ha.s been given the ca.se of Ba.con v. Federal J.eserve Bank of Sa.n Fra.ncisco, recently decided by Judge Neterer, but it is not a.pplicable here. The ca.se last cited, decided by the same lea.rned judge 1 he.s a.pplice.bility, and serves pointedly, when compa.red with the Ba.con ca.se 1 to illustra.te the distinction between a. general and a. special a.ppe a.ra.nce. Both the letter a.sking for stipula.tion for extension of time, addressed to counsel for pla.intiff, a.nd the stipu~a.tion ' entered into by ·.f X-3S34 -5- counsel for the parties, sho,v unmiataka:bly tha.t 1 t wa.s the put'pose of defendant to obta.in an extension of time within which to answer, demu.t' to the compl~int, be a.dvised. or make suCh motion in respect thereto as it might Nothing is sa.id from which to infer ths.t defendant de- signed to reserve its right orprivilese of objecting to the jurisdiction of the court over the person of the defendant. The a.ppea.rance is ob- viously general in its effect, and is tantamount to a. -:r:,:..vo:r of jurisdiction over the person, Cou.'1.sel says now, in effect, that he did not intend tha.t his a.ppea.rance, thus ma.de on the pa.t't of defendant, should ·subject it to the jut'isdiction of the court; but the a.cts speak for themselves, a.nd show incontrovertibly their purpose. Another question is presented, whiCh pertains to the power of the court, in its discretion, to relieve the defendant of the effect of ita genera.l a.ppea. rance, and allow it now to appear specia.lly for con- testing jurisdiction over the person. While it is obvious tha.t the court is possessed of suCh power, it is not a.t a.ll clea.r tha.t it should so exercise it in the present case. To permit the defendant to ra.ise the question now would be to permit it to violate a. solemn stipula.tion, in which the opposing pa-rty ha.s a.cquired ~ va.lua.ble right, and this by extending to the defendant a. fa:vor a.sked for a.nd granted. The motion to dismiss will be denied.
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