[138 U.S. 285, 286] This case is before us upon a motion to cismiss the writ of error for want of jurisdiction in this court to re-examine the judgment below; or, if this court has jurisdiction, to affirm the judgment upon the ground that the question on which our right of review depends is too frivolous to require argument upon it.
Certain provisions of the statutes of Texas relating to the service of process are, it is contended, in violation of the clause of the fourteenth amendment declaring that no state shall deprive any person of property without due process of law. These provisions are as follows:
T. N. Waul, for plaintiff in error.
A. H. Garland and Heber J. May, for defendant in error.
Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.
The supreme court of Texas, construing these statutory provisions has held, and it so held in this case, that a defendant, who appears only to obtain the judgment of the court upon the sufficiency of the service of the process upon him, is thereafter subject to the jurisdiction of the court, although the process against him is adjudged to have been insufficient to bring him into court for any purpose. The question here is whether such legislation is consistent with 'due process of law.' That question, arising upon the above statute, was presented in York v. Texas, 137 U.S. 15 , 19, ante, 9, and it was there held that state 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 proess ,' was not forbidden by the fourteenth amendment.
Upon the record of this case there was color for the motion to dismiss, and, upon the authority of York v. Texas, the motion to affirm the judgment is sustained.