UNITED STATES v. AMERICAN BELL ·1·sr.n1>noNn 00. 45
It is next claimed by counsel for the complainants that the Amer-
ican Bell Telephone Company has entered its appearance in this suit.
This claim is based upon that portion of the plea which, after reciting
what is sought to be accomplished by the bill, proceeds to set forth
that said alleged cause of action, if it exist, is exclusively of federal
origin, cognizance, and jurisdiction; that the whole business of uling
A the applications, prosecuting them, obtaining and receiving said pat- _
ents, and all communications with the patent—oifce, and with all om-
cers thereof, relating to that business, were done, transacted, and had
in Washington city, or in Massachusetts, and not in any particular
in the state of Ohio; and that said cause of action arose, if at all, in
the District of Columbia and state of Massachusetts, under the laws
of the United States, and not under any law or statute of the stateof
Ohio. t It is said that these facts are set up bysaid defendant to show
that this court, sitting in Ohio, has no jurisdiction over the subject-
matter of thesuit; that this portion of the plea is practically ade-
niurrer to the jurisdiction of the court over the controversy, and is
eqzuivalent to a motion to dismiss for want of equity, which, in Jones
v. Andrews, .10 Wall.; 332, was held to constitute an appearaucep
. This position cannot be maintained. The defendant, in these state-
A ments and recitals of the plea, was simply negativing the facts that
the cause of action or subject·matter of the suithad its origin in the
state of Ohio, on the theory that the jurisdiction of this court over
said defendant, if it existed under the Ohio statute, was limited to
cases and causes of action arising from or under its business transac-
tions in this state, as was held in Grover v. American Exp. Co., 11 Fed.
Rep. 386; Smith v. Mutual LUe Ins. Co., 14 Allen, 336; and Sawyer
v. North American Life Ins.,C’0., 46 Vt. 697. The correctness or in-
correctness of this theory does not affect the character or purpose of
the plea, or make it a defense to the merits of the suit. The_ plea be-
gins by saying: "This defendant, appearing specially and solely to
object to the jurisdiction of this court, pleads to the jurisdiction of this
court over it, and for cause of plea says that this defendant is not com-
pellable to appear in response to said writs, and does not accept or
waive service thereof;" and prays in conclusion, not for the dismissal
of the suit, but as follows: " Wherefore this defendant prays the judg-
ment of this honorable court whether it ought to be required to ap-
pear in accordance with any writ of subpoena issued in said suit."
This plea cannot properly be construed as raising or presenting an
issue upon the merits of the bill, such as will operate as-an appear-
ance on the part of said defendant. In Harkness v. Hyde, 98 U. S.
476, a motion was made to dismiss the action, but was argued. as a
rnotiongto set aside the service, and was so treated by the court. Mr.
Justice Frnmu, in stating the opinion of the court in that case, says:
"Illegality in a proceeding by which jurisdiction is to be obtained is
in no case waived by the appearance of the defendant for the purpose
of calling the attention of the court to such irregularity. It is only