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Opinion of the Court.

boat. Those were not cases of collision, and there was no damage to the steam-tug, and she alone was sued for the loss. Such cases were those of The William Murtaugh, 3 Fed. Rep. 404, and 17 Fed. Rep. 260; The William Cox, 3 Fed. Rep. 645, affirmed by the Circuit Court, 9 Fed. Rep. 672; Connolly v. Ross, 11 Fed. Rep. 342; The Bordentown, 16 Fed. Rep. 270. Also, in cases where the vessel towed was held to be in fault for not being in proper condition, Phila. Railroad Co. v. New England Transportation Co., 24 Fed. Rep. 505; and where a boat was injured by striking the bottom of a slip, in unloading at the respondent's elevator, the boat herself being also in fault, Christian v. Van Tassel, 12 Fed. Rep. 884; and where the vessel towed was old and unseaworthy, The Syracuse, 18 Fed. Rep. 828; The Reba, 22 Fed. Rep. 546. In Snow v. Carruth, 1 Sprague, 324, in the District Court for the District of Massachusetts, damage to goods carried by a vessel on freight was attributable partly to the fault of the carrier and partly to the fault of the shipper; and, it being impossible to ascertain for what proportion each was responsible, the loss was divided equally between them.

All these were cases in admiralty, and were not cases of collision between two vessels. They show an amelioration of the common law rule, and an extension of the admiralty rule in a direction which we think is manifestly just and proper. Contributory negligence, in a case like the present, should not wholly bar recovery. There would have been no injury to the libellant but for the fault of the vessel; and while, on the one hand, the court ought not to give him full compensation for his injury, where he himself was partly in fault, it ought not, on the other hand, to be restrained from saying that the fact of his negligence should not deprive him of all recovery of damages. As stated by the District Judge in his opinion in the present case, the more equal distribution of justice, the dictates of humanity, the safety of life and limb and the public good, will be best promoted by holding vessels liable to bear some part of the actual pecuniary loss sustained by the libellant, in a case like the present, where their fault is clear, provided the libellant's fault, though evident, is neither wilful,

Statement of the Case.

nor gross, nor inexcusable, and where the other circumstances present a strong case for his relief. We think this rule is applicable to all like cases of marine tort founded upon negligence and prosecuted in admiralty, as in harmony with the rule for the division of damages in cases of collision. The mere fact of the negligence of the libellant as partly occasioning the injuries to him, when they also occurred partly through the negligence of the officers of the vessel, does not debar him entirely from a recovery.

The necessary conclusion is, that the question whether the libellant, upon the facts found, is entitled to a decree for divided damages, must be answered in the affirmative, in accordance with the judgment below. This being the only question certified, and the amount in dispute being insufficient to give this court jurisdiction of the whole case, our jurisdiction is limited to reviewing this question. Chicago Union Bank v. Kansas City Bank, 136 U. S. 223. Whether, in a case like this, the decree should be for exactly one-half of the damages sustained, or might, in the discretion of the court, be for a greater or less proportion of such damages, is a question not presented for our determination upon this record, and we express no opinion upon it.

Decree affirmed.

YORK v. TEXAS.

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ERROR TO THE SUPREME COURT OF THE STATE OF TEXAS.

No. 999. Submitted October 21, 1890. - Decided November 3, 1890.

The provisions in the Revised Statutes of Texas, Articles 1242-1245, which, as construed by the highest court of the State, convert an appearance by a defendant for the sole purpose of questioning the jurisdiction of the court, into a general appearance and submission to the jurisdiction of the court, do not violate the provision in the Fourteenth Amendment to the Constitution which forbids a State to deprive any person of life, liberty or property without due process of law.

On the 14th day of November, 1888, a personal judgment was rendered in the District Court of Travis County, Texas,

Argument for Plaintiff in Error..

against the plaintiff in error, which judgment was subsequently affirmed by the Supreme Court of the State. Error is now alleged in this, that the District Court had no jurisdiction of the person of the defendant. The record discloses that on October 20, 1885, the defendant leased from the State certain school lands, at a stipulated rental. The lease provided that in all suits thereunder the venue should be laid in Travis County, Texas. The State filed its petition on February 15, 1888, alleging non-payment of the rent due in 1886 and 1887. The defendant being a non-resident, a citizen of St. Louis, Missouri, a notice in accordance with the provisions of the statute was served upon him personally in that city. No question is made but that the service was in strict conformity with the letter of the statute. On March 9, 1888, the defendant appeared by his counsel and filed a special plea, challenging the jurisdiction of the court, on the ground that he was a non-resident and had not been served personally with process within the limits of the State. This plea was overruled. Thereafter, and on the 5th day of October, 1888, the defendant appeared by his attorneys in open court, demanded a jury, paid the jury fee, and had the cause transferred to the jury docket. On the 6th day of October he again filed a plea to the jurisdiction, on the same ground, which was also overruled. On the 14th day of November, when the cause was reached and called for trial, he again appeared by his attorneys, waived his right of trial by a jury and his demand of a jury, and declined to further answer to the cause-relying solely upon his plea to the jurisdiction. The court thereupon proceeded to render judgment against him, which, as heretofore stated, was affirmed by the Supreme Court. 73 Texas, 651.

Mr. Rufus II. Thayer for plaintiff in error

The District Court of Travis County had no jurisdiction over the plaintiff in error by reason of the service in St. Louis. The Supreme Court of Texas concedes this when it says: "Since the decision made in the case of Pennoyer v. Neff, 95 U. S. 714, 723, it must be held that service made without this

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Argument for Plaintiff in Error.

State, as it was upon appellant, is not sufficient to confer jurisdiction on a court of this State to render a mere personal judg ment against one, a citizen of and resident in another State. Freeman v. Alderson, 119 U. S. 185; Hart v. Sansum, 110 U. S. 151; Harkness v. Hyde, 98 U. S. 476; Cooper v. Reynolds, 10 Wall. 308. One of the grounds on which the decision in Pennoyer v. Neff is based, makes it authoritative throughout all the Union in all cases to which it is applicable, and, although there may have been some decisions made in this State asserting a contrary rule, we feel bound to follow it."

The Supreme Court of Texas, however, does not stop here as we contend the court should have done, and enter a judgment reversing and dismissing this cause for want of jurisdiction, but it goes further; and while it says that a judgment entered against York before his filing his plea to the jurisdiction would have been a nullity, it also says, that by appearing for that purpose, even though the record leaves no ground for claim, appellant thereby intended voluntarily to submit himself to the jurisdiction of the court, which from first to last he resisted, and thereby submitted to the jurisdiction of the Travis County District Court. We contend that this ruling is wrong; that it is in contravention of the Constitution of the United States and the Fourteenth Amendinent thereof; and that it is repug nant to the same as it thereby confers jurisdiction on the courts of Texas of citizens of other States; and that the judgment of the lower court affirmed by the Supreme Court is an absolute nullity.

I. The appearance of plaintiff in error in response to the notice served on him, and under protest for the sole purpose of questioning the jurisdiction of the District Court of Travis County, in no sense bound him to submit to the jurisdiction of that court. Harkness v. Hyde, 98 U. S. 476; Bank of Vicksburg v. Slocomb, 14 Pet. 60; Raquet v. Nixon, Dallam (Texas), 386; De Witt v. Monroe, 20 Texas, 289; Hagood v. Dial, 43 Texas, 625; Robinson v. Schmidt, 48 Texas, 13; Ins. Co. v. Fitzgerald, White & Willson (Texas), 785; United States v. Yates, 6 How. 605; 'Decker v. Belting Co., 11 Blatchford, 76; Pomeroy v. N. Y. & N. H. Railroad, 4 Blatchford, 120; Day

VOL. CXXXVII-2

Argument for Plaintiff in Error.

v. Newark India Rubber Co., 1 Blatchford, 628; Parrott v. Ala. Life Ins. Co., 4 Woods, 353; Cunningham v. Goelet, 4 Denio, 71; Wheelock v. Lee, 74 N. Y. 495; Sullivan v. Frazee, 4 Robertson (N. Y.) 616; McNabb v. Bennett, 66 Illinois, 157; Aultman v. Steinan, 8 Nebraska, 109; Wright v. Boynton, 37 N. H. 9; S. C. 72 Am. Dec. 319; Brauner v. Chapman, 11 Kansas, 118; Wynn v. Wyatt, 11 Leigh, 584; Cooper v. Smith, 25 Iowa, 269.

II. The appearance of plaintiff in error under protest solely for the purpose of questioning the jurisdiction of the District Court, even in contemplation of Art. 1242 of the Revised Statutes of Texas, was not such a voluntary appearance, nor was his plea such an answer, as to make him subservient to the jurisdiction of the Travis County District Court. Such was the undoubted rule before the enactment of the Revised Statutes. Raquet v. Nixon, Dallam, 388; De Witt v. Monroe, 20 Texas, 289; Hagood v. Dial, 43 Texas, 625; Robinson v. Schmidt, 48 Texas, 19.

The learned justice who rendered the opinion in this cause, seems to concede that such was the rule in Texas prior to the adoption of the Revised Statutes, but in a very ingenious manner, after citing Arts: 1242, 1243 and 1244 of the Revised Statutes of Texas; after stating that an answer consists of all the defensive pleadings; after holding that a plea to the jurisdiction is therefore an answer; he invokes especially Art. 1242 of Revised Statutes, which says that the filing of an answer by the defendant shall constitute such an appearance as no longer to make necessary the issuance of a citation; and he concludes, therefore, that the plaintiff in error has voluntarily appeared, and therefore affirms the judgment.

We cannot agree with the learned judge in the conclusion that Art. 1242 of the Revised Statutes changed the law of Texas from what it was as laid down in the cases above cited before the Revised Statutes went into effect. A careful examination of the report of the commissioners to revise the statutes of Texas, which report, so far as it is pertinent to this case, is to be found in Vol. 2 of Sayles' Revision of the Texas statutes, pp. 722, 723, will show that at least in the minds of the com

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