Federal court to grant relief to the plaintiff by subjecting to the claim of the plaintiff the assets and credits of the defendant, to be attached in the case, without personal service of summons upon him or his voluntary appearance in the cause, and that the motion filed in the case did not constitute a voluntary appearance, and that the court, as a Federal court, had no jurisdiction to grant a personal judgment against the defendant or to make a final judgment or order subjecting to the claim of the plaintiff the assets and credits of the defendant so sought to be attached.

The attachment was sought to be levied and was claimed to be authorized under the act of June 1, 1872, 17 Stat. 196, c. 255, now § 915 of the Revised Statutes. It is as follows:

"In common law causes in the circuit and district courts the plaintiff shall be entitled to similar remedies, by attachment or other process, against the property of the defendant, which are now provided by the laws of the State in which such court is held for the courts thereof; and such circuit or district courts may, from time to time, by general rules, adopt such State laws as may be in force in the States where they are held in relation to attachments and other process: Provided, That similar preliminary affidavits or proofs, and similar security, as required by such State laws, shall be first furnished by the party seeking such attachment or other remedy."

Assuming that the attachment could be issued under the laws of West Virginia, under this statute was there authority in the courts of the United States to issue the attachment, it appearing that no service had been or could be made upon the defendant and that he had not appeared in the action?

Section 915 was before this court in Ex parte Railway Company, 103 U. S. 794, and it was held that as, under § 739 of the Revised Statutes, Act of March 3, 1875, 18

Stat. 470, c. 137, then in force, no civil action, not local in its nature, could be brought against any one by original process in any United States Circuit Court other than that for the State of which he was an inhabitant or in which he was found at the time of serving the writ, an attachment could not be issued, the defendant being a nonresident and not having been served with process. It was further held that an attachment was but an incident to a suit and unless the suit could be maintained the attachment must fall. In other words, in cases where the defendant could not be sued and jurisdiction acquired over him personally, the auxiliary remedy by attachment could not be had, as attachment was not a means of acquiring jurisdiction. The same view was taken in Nazro v. Cragin, 3 Dillon, 474, by Mr. Justice Miller, on the circuit. Ex parte Railway Company, supra, was but an affirmance, as to the right of attachment where no personal service could be had, of the former case of Toland v. Sprague, 12 Peters, 300, wherein it was held that a person was not amenable to attachment against his property except where process could be served upon his person.

It is contended, however, that since the act of March 3, 1887, 24 Stat. 552, c. 373, as amended August 13, 1888, 25 Stat. 433, c. 866, the right of attachment should be held to exist in cases like the present. The statute of 1888 provides:

"And no civil suit shall be brought before either of said courts against any person, by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plantiff or the defendant.”

The argument is that the right to issue an attachment under the act of 1872 should obtain, since the law now permits suit in the district of the residence either of the

Opinion of the Court.

229 U.S.

plaintiff or defendant, omitting the provision of the act of 1875 that the defendant could be sued only in the district in which he was an inhabitant or could be found at the time of commencing the proceeding. But we are of the opinion that this amendment to the statute was not intended to do away with the settled rule that, in order to issue an attachment, the defendant must be subject to personal service or voluntarily appear in the action. If Congress had intended any such radical change, it would have been easy to have made provision for that purpose, and doubtless a method of service by publication in such cases would have been provided. We think the rule has not been changed; that an attachment is still but an incident to a suit, and that, unless jurisdiction can be obtained over the defendant, his estate cannot be attached in a Federal court. See Laborde v. Ubarri, 214 U. S. 173; United States v. Brooke, 184 Fed. Rep. 341.

Another contention is that the defendant in appearing for the purpose of the motion submitting to the court the question of the right to attach his compensation as receiver in the court, had voluntarily submitted to the jurisdiction of the court, but we are of the opinion that this contention is untenable. It is the settled practice in the Federal courts that an appearance may be made for the sole purpose of raising jurisdictional questions, without thereby submitting to the jurisdiction of the court over the action. Goldey v. Morning News, 156 U. S. 518; Shaw v. Quincy Mining Co., 145 U. S. 444, 453.

It is true that where the defendant appears by motion and objects to the jurisdiction and also submits a question going to the merits of the action, it being one of which the court had jurisdiction, there is a general appearance in the case which gives jurisdiction, as in St. Louis & S. F. R. Co. v. McBride, 141 U. S. 127, where a demurrer was interposed raising two grounds of jurisdiction and the third going to the merits of the cause of action, and it was held

that there had been a submission to the jurisdiction of the court. See also Western Loan Co. v. Butte & Boston Min. Co., 210 U. S. 368.

In this case, however, the submission was not of any question involving the merits of the suit, but of one with reference to the jurisdiction of the court to issue the attachment, adding the further ground that the property in question was not subject to attachment or garnishment. No issue was made involving the merits of the action. This special appearance was sufficient to raise the question of jurisdiction only. Davis v. C., C., C. & St. L. Ry., 217 U. S. 157.

In our opinion the Circuit Court did not err in holding that it had no jurisdiction to issue the attachment in this

case.

Judgment affirmed.

DETROIT UNITED RAILWAY v. CITY OF
DETROIT.

ERROR TO THE SUPREME COURT OF THE STATE OF MICHIGAN.

No. 1047. Submitted May 5, 1913.-Decided May 26, 1913.

Franchises granting rights of the public must be in plain language, certain and definite in terms and containing no ambiguities. They are to be strictly construed against the grantee. Cleveland Electric Ry. Co. v. Cleveland, 204 U. S. 116.

An ordinance requiring a street railway company to comply with certain conditions on all of its lines until the expiration of the franchises of longest duration, held not to constitute a contract, extending all the franchises to the date of such expiration, within the protection of the contract clause of the Federal Constitution. Where a street railroad company is operating in the streets of a city for a definite period and has enjoyed the full term granted, the

municipality may, upon failure of renewal of the grant, require the company within a reasonable time to remove its tracks and other property from the streets, without impairing any contractual obligation protected by the Federal Constitution or depriving the company of its property without due process of law.

156 Michigan, 106, affirmed.

THE facts, which involve the validity of a decree of the state court holding that certain franchises of the railway company had expired and that it should pay the city temporary rental for the use of certain streets or vacate those streets, are stated in the opinion.

Mr. Richard I. Lawson and Mr. Alfred Lucking for appellee, in support of motion to dismiss, affirm or ad

vance.

Mr. John C. Donnelly, Mr. William L. Carpenter and Mr. Fred A. Baker for plaintiff in error, in opposition thereto.

MR. JUSTICE DAY delivered the opinion of the court.

This is a suit in equity, originating in the Circuit Court for the County of Wayne, of the State of Michigan, brought by the City of Detroit against the Detroit United Railway, to determine that certain franchises of the railway have expired and to require it to pay a temporary rental or to vacate the streets operated under the franchises. The decree of the Circuit Court in favor of the city was affirmed by the Supreme Court of Michigan. The case comes here on writ of error, and is now before us on motion of the city to dismiss, affirm or advance.

The Detroit United Railway owns and operates all the street railways in Detroit. Its principal east and west line is called the Fort Street Line, in connection with which three franchises have been granted to the Railway and