ERROR TO THE SUPERIOR COURT OF THE STATE OF MASSACHUSETTS, HOLDEN AT BOSTON.
MR. JUSTICE LAMAR delivered the opinion of the court.
This was an action on contract, brought in the Superior Court of the Commonwealth of Massachusetts for the county of Suffolk, by Henry Amy, a citizen of New York, against Jerome F. Manning, a citizen of Massachusetts, principal defendant, and certain other named defendants who were supposed to have property belonging to Manning in their possession, to recover the amounts of four certain promissory notes, aggregating $23,475, exclusive of interest.
The action was commenced September 5, 1884, by a writ returnable on the first Tuesday in October, 1884. It appearing on the return day that the writ had been served on only a few of the garnishees, and not on the principal defendant, the court made an order directing that personal service be
made upon him at least fourteen days prior to the fourth Tuesday in October of that year. Personal service was effected on the defendant October 9, 1884, at Boston, by a deputy sheriff, and return thereof was made on the following day. On the 14th of that month, Charles Cowley entered his appearance specially for the defendant Manning, and on the 22d of the same month filed a motion to dismiss the action. On the 16th of November, following, Wilbur H. Powers entered a special appearance for Manning, and filed a motion to dismiss and a plea in abatement, both of which were based upon the ground that the writ had not been personally served on him. On the 22d of December, 1884, the aforesaid motion and plea not having been passed upon, the court ordered the defendant Manning to file an answer on or before December 26 of that year. This he did.
On the 29th of December, 1884, the last day of the October term of the court, Manning filed what purported to be a petition and bond for the removal of the cause to the United States Circuit Court for the District of Massachusetts, and the also, simultaneously and in connection therewith, filed the following motion:
"Defendant's Motion Touching the Removal of this Action.
"And now comes the defendant specially and suggests to the court that he has heretofore filed a motion to dismiss this action for causes therein set forth and also a plea in abatement for causes therein set forth, but neither said motion nor said plea has yet been heard or determined by this court, and the court is about to adjourn without day.
"He also suggests that he has herewith filed a petition for the removal of this cause to the Circuit Court of the United States for the District of Massachusetts, together with a suitable bond therefor, but that he has filed the same without prejudice to said motion or said plea.
"Wherefore, in case said motion should not be allowed and in case said plea should not be sustained, he prays the court to order the removal of this action, as prayed for in said petition.
"By his att'y, WILBUR H. ...