Opinion of the Court.

missioners, no such sweeping change was intended; for, in their report, they fail to show anywhere that the old law was in any way repealed, changed or modified, though the purpose of the report was to show this very fact. We are further borne out in this conclusion by the Revised Statutes themselves, for Art. 1262 says: "The defendant in his answer may plead as many several matters whether of law or fact as he shall think necessary for his defence and which may be pertinent to the cause, provided that he shall file them all in due order of pleading."

In this connection, we desire further to call the attention of the court to the fact, that this view of the statute in the opinion of the Supreme Court, if inference is worth anything, was certainly not in the mind of the other Texas courts, who have had occasion to pass on this question of what constitutes an appearance since the revising of the Texas statutes. Parrott v. Alabama Gold Life Ins. Co., 4 Woods, 353; P. & A. Life Ins. Co. v. Fitzgerald, White & Willson, 784; Liles v. Woods, 58 Texas, 419; Bradstreet Co. v. Gill, 72 Texas, 115.

Mr. James S. Hogg, Attorney General of the State of Texas, for defendant in error.

MR. JUSTICE BREWER, after stating the case as above reported, delive ed the opinion of the court.

I was conceded by the District and the Supreme Courts that the service upon the defendant in St. Louis was a nullity, and gave the District Court no jurisdiction; but it was held that, under the peculiar statutes of the State of Texas, the appearance for the purpose of pleading to the jurisdiction was a voluntary appearance, which brought the defendant into court. Plaintiff in error questions this construction of the Texas statutes; but, inasmuch as the Supreme Court, the highest court of the State, has so construed them, such construction must be accepted here as correct, and the only question we can consider is, as to the power of the State in respect thereto.

It must be conceded that such statutes contravene the estab

Opinion of the Court.

lished rule elsewhere-a rule which also obtained in Texas at an earlier day, to wit, that an appearance which, as expressed, is solely to challenge the jurisdiction, is not a general appearance in the cause, and does not waive the illegality of the service or submit the party to the jurisdiction of the court. Harkness v. Hyde, 98 U. S. 476; Raquet v. Nixon, Dallam (Texas), 386; De Witt v. Monroe, 20 Texas, 289; Hagood v. Dial, 43 Texas, 625; Robinson v. Schmidt, 48 Texas, 19.

The difference between the present rule in Texas and elsewhere, is simply this: Elsewhere the defendant may obtain the judgment of the court upon the sufficiency of the service, without submitting himself to its jurisdiction. In Texas, by its statute, if he asks the court to determine any question, even that of service, he submits himself wholly to its jurisdiction. Elsewhere, he gets an opinion of the court before deciding on his own action. In Texas, he takes all the risk himself. the service be in fact insufficient, all subsequent proceedings, including the formal entry of judgment, are void; if sufficient, they are valid. And the question is, whether under the Constitution of the United States the defendant has an inviolable right to have this question of the sufficiency of the service decided in the first instance and alone.

If

The Fourteenth Amendment is relied upon as invalidating such legislation. That forbids a State to "deprive any person of life, liberty or property, without due process of law." And the proposition is, that the denial of a right to be heard before judgment simply as to the sufficiency of the service operates to deprive the defendant of liberty or property. But the mere entry of a judgment for money, which is void for want of proper service, touches neither. It is only when process is issued thereon or the judgment is sought to be enforced that liberty or property is in present danger. If at that time of immediate attack protection is afforded, the substantial guarantee of the amendment is preserved, and there is no just cause of complaint. The State has full power over remedies and procedure in its own courts, and can make any order it pleases in respect thereto, provided that substance of right is secured without unreasonable burden to parties and litigants.

Syllabus.

Antoni v. Greenhow, 107 U. S. 769. It certainly is more convenient that a defendant be permitted to object to the service, and raise the question of jurisdiction, in the first instance, in the court in which suit is pending. But mere convenience is not substance of right. If the defendant had taken no notice of this suit, and judgment had been formally entered upon such insufficient service, and under process thereon his property, real or personal, had been seized or threatened with seizure, he could by original action have enjoined the process and protected the possession of his property. If the judgment had been pleaded as defensive to any action brought by him, he would have been free to deny its validity. There is nothing in the opinion of the Supreme Court or in any of the statutes of the State, of which we have been advised, gainsaying this right. Can it be held, therefore, that legislation simply forbidding the defendant to come into court and challenge the validity of service upon him in a personal action, without surrendering himself to the jurisdiction of the court, but which does not attempt to restrain him from fully protecting his person, his property and his rights against any attempt to enforce a judgment rendered without due service of process, and therefore void, deprives him of liberty or property, within the prohibition of the Fourteenth Amendment? We think not.

The judgment is affirmed.

MR. JUSTICE BRADLEY and MR. JUSTICE GRAY dissented.

BUTLER v. STECKEL.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 36. Argued October 24, 1890.- Decided November 3, 1890.

The claims of letters patent No. 274,264, granted to Theodore H. Butler, George W. Earhart, and William M. Crawford, March 20, 1883, for an

Opinion of the Court.

improvement in bretzel-cutters," are invalid, because, in view of the state of the art, it required no invention to make a single die to cut dough, on a flat surface, into any particular shape desired, whether the shape of a bretzel or any other shape.

All that it was necessary to do was to take the bretzel as a pattern and make a die to correspond in shape with it, the bretzel presenting all the lines and creases, points and configurations, that were required in the die. Reasons stated, why the unsuccessful results of prior attempts to make a machine to cut bretzels do not show the existence of invention in the claims of the patent.

IN EQUITY to recover for the infringement of letters patent. Decree dismissing the bill. Complainants appealed. The case is stated in the opinion.

Mr. Lysander Hill (with whom was Mr. Joseph R. Edson on the brief) for appellants.

Mr. Thomas A. Banning (with whom was Mr. Ephraim Banning on the brief) for appellees.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is a suit in equity, brought in the Circuit Court of the United States for the Northern District of Illinois, March 28, 1883, by Theodore H. Butler, George W. Earhart and William M. Crawford against George Steckel and Frederick Steckel, to recover for the infringement of letters patent No. 274,264, granted to the plaintiffs March 20, 1883, on an application filed July 6, 1882, for an "improvement in bretzel-cutters."

The specification, claims and drawings of the patent are as follows: "This invention relates to an improvement in molds or dies for stamping or cutting out bretzels, having for its object more especially to cause the product or bretzel to have the appearance of a hand-made bretzel; and it consists in the peculiar construction of the mold or die to effect this result, and other details of construction, substantially as hereinafter more fully set forth.

"In the accompanying drawings, Fig. 1 is a plan view of our improved bretzel die or mold. Fig. 2 is a side view, partly

Opinion of the Court.

broken away, thereof. Fig. 3 is an enlarged detailed plan view of the die proper. Figs. 4 and 5 are sectional views, taken respectively on the lines x x and y y of Fig. 3. Fig. 6 is

a view of the product or bretzel of our die. In carrying out our invention we construct the die A after the fashion or configuration of the ordinary bretzel in its general shape- that is, as more clearly shown in Fig. 3. For the purpose of this