Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

issues of process such as a warrant of arrest for service or execution in another district.6

The Revised Statutes provide that "all writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof."7 This does not apply to a notice to a garnishee, nor, it has been held, to a notice to a party which is the initiation of a suit, or a proceeding, 10 such as a notice of a motion for judgment 11 under the Code of Virginia 12 or a notice of the commencement of a proceeding to condemn land. 13

It has been held in the Second Circuit that a rule of State practice which permits an attorney to issue a summons, subpæna, or other process without the seal of the court or the signature of the clerk, will not be followed by the Federal, court; 14 and that a summons issued without such seal and signature is void, and cannot be cured by amendment.15

Writs and process which issue from the Supreme Court and from the Circuit Courts of Appeals, must bear teste of the Chief Justice of the United States, or, when that office is vacant, of the associate justice next in precedence, and those issuing from a District Court must bear teste of the judge of that court or, when that office is vacant, of the clerk thereof.16 All process must bear teste from the day of its issue. 17 It has been held that a writ with the proper seal, but wrongly tested, may be amended.18 Where the State practice requires a summons to run in the name of the State, the summons, if properly tested, need not run in the name of the United States. 19 In Porto

6 Mitchell v. Dexter, C. C. A., 244 Fed. 926.

7 U. S. R. S., $ 911.

8 Wyle v. Cohn, 63 Fed. 759. See supra, $ 453.

9 Leas & McVitty v. Merriman, 132 Fed. 510. 10 Re Condemnation

Suits by United States, 234 Fed. 433. See infra, $ 482.

11 Leas & McVitty v. Merriman, 132 Fed. 510.

12 Code of Virginia, $ 3211.
13 Re Condemnation Suits by

United States, 234 Fed. 443. See infra, $ 482.

14 Dwight v. Merritt, 4 Fed. 614; Peaslee v. Haberstro, 15 Blatchf. 472. Contra, Chamberlain v. Men. sing, 47 Fed. 435.

15 Dwight v. Merritt, 4 Fed. 614; Peaslee v. Haberstro, 15 Blatchf. 472. Contra, Chamberlain v. Men. sing, 47 Fed. 435. 16 U, S. R. S.,

8 911. 17 U. S. R. S., § 912. 18 U, S. y. Turner, 50 Fed. 734. 19 Chamberlain v. Mensing, 47

Rico all judicial process shall run in the name of "United States of America, ss, the President of the United States," and all penal or criminal prosecutions in the local courts shall be conducted in the name and by the authority of “The People of Porto Rico." 20

The District Courts have power to make rules and orders, not inconsistent with any law of the United States as to the return of writs and processes.21 When a rule of the District Court fixes the return day at the time described by the State statute, then in force, a subsequent change in the State law will not affect the Federal practice in this respect.22 This authorized those courts to direct that writs, issued from them, shall be returned within a different time than that prescribed by the State laws. 28

The plaintiff is not entitled to the entry of a writ which is returnable upon a wrong return day.2 An objection to a return day cannot be taken in the court of review unless it is the subject of an objection and exception below.26

Writs to seize articles that are an infringement of a copyright are regulated by the rules of the Supreme Court of the United

[ocr errors]

Fed. 435. It has been held that the power of the Federal Courts to issue the writ of capias ad satisfaciendum is derived from the Judiciary and Process Aets of 1789, and is not affected by the Illinois Statute of June 17, 1895. U. 8. v. Arnold, C. C. A., 69 Fed. 987.

20 39 St. at L. 954, Comp. St., $ 3803d.

21 U. S. R. S., $ 918.

22 Boston & Maine R. R. v. Gokey, 210 U. S. 155, 28 Sup. Ct. 657, 52 L. ed. 1002; Re Kinney, C. C. A., 202 Fed. 137.

23 Gokey V. Boston & Maine R. Co., 130 Fed. 992; aff'd Boston & Maine Railroad v. Gokey, 210 U. S. 155, 52 L. ed. 1002. U. S. v. U, S. F. & G. Co., C. C. A., 186 Fed. 477. In Massachusetts, the return days of original writs are the same as they

were under the State practice in
1793 and must be on the first day
of some term fixed by statute with
a test dated sufficiently in advance
of such return days as to afford due
opportunities for service. Re Kin-
ney, C. C. A., 202 Fed. 137. See
Elson v. Waterford, 135 Fed. 247.
Where a summons, returnable on the
first Tuesday of October next, was
not served until subsequent to the re-
turn day, it was held to be sufficient
to oblige the defendant to appear on
or before the first Tuesday next suc-
ceeding the date of service, although
the date of issuing the writ had not
been changed. Speare v. Stone, C.
C. A., 193 Fed. 375.

24 Kinney v. Plymouth Rock Squab
Co., C. C. A., 214 Fed. 766.

25 Baker Contract Co. v. U. S., C. C. A., 204 Fed. 390.

States previously quoted.26 Such a writ is not strictly a writ of replevin, although in the nature of the same, and it need not follow the technical provisions of any State practice.27

It has been said that United States Revised Statutes, Section 602, providing for the continuance of all process, pleadings and proceedings during a vacancy, is a remedial statute, to be liberally construed in aid of its general purpose. 28

Otherwise, the practice concerning writs and process usually followed that in the State courts.29 The Federal court followed a State statute 30 authorizing the issue of a summons at any time within a year after the complaint was filed.81

$ 455a. Service of process. The Supreme Court has said, speaking of the act requiring a conformity with the State practice in actions at common law: “There can be no doubt, we think, that the mode of service of process is within the categories named in the act."' 1 But where the Federal court adopted a rule regulating the service of process in accordance with the then State practice, it was held that service thus made was good although the State practice had subsequently been amended. It was so held when the long established practice of the Federal court, concerning service upon towns, differed from that required by the State statute.

The Revised Statutes make it the marshal's duty to execute, throughout the district, all lawful precepts directed to him and issued under the authority of the United States, and give him and all his deputies the same powers as the sheriff's in the same State and their deputies.5

26 214 U. S. 533, quoted $ 150, supra. See Stern v. Jerome H. Remick & Co., 164 Fed. 781.

27 Stern v. Jerome H. Remick & Co., 164 Fed. 781.

28 U. S. v. Murphy, 82 Fed. 983.

29 Amy v. Watertown, 130 U. S. 301, 304, 32 L. ed. 946, 947; supra, $ 453, infra, $ 455a.

30 California Code of Civ. Proc., § 406.

31 Perris Irr. Dist. v. Turnbull, C. C. A., 215 Fed. 562.

[blocks in formation]

The State practice is usually followed as to the manner of service of process at common law within the district. Where the State practice does not require a writ to be served by a public officer it need not in an action be served by the marshal.? It has been held that, when the laws of the State give such power to a sheriff, the marshal may appoint a person to serve a particular writ or perform any other special service, that the blank form of a writ, signed and sealed, may be given by the clerk to an attorney; that the attorney may fill in the writ, in his own handwriting, with the names of the parties, style of action, and date; that the marshal may give the attorney a blank form appointing a deputy in which the attorney may write the name of the process-server; 9 and that when the writ as served is indorsed by an attorney not admitted to practice in the Federal court but qualified for admission, the court may amend it without thereby invalidating the service, by substituting another attorney, or by admitting the attorney to practice in such court.10

The State practice is not followed so far as to permit a service of process in another district from that where the action is brought.11

Where the State statute is silent, the Federal court is not bound to follow the State practice concerning exemption from service 12 and the determination of the validity thereof.18 The validity of the service of a summons is not affected because a copy of the complaint, thereto annexed, contains no allegations which show the jurisdiction of the court.14

Courts according to the statutes of
Oregon. Holden v. Williams, 75
Fed. 798. See supra, $ 340.

6 U. S. v. Mitchell, 223 Fed. 805; supra, $$ 163-164c.

7 U. S. v. Mitchell, 223 Fed. 805; contra. Schwabacker v. Reilly, 2 Dill. 127. See Amy v. Watertown, 130 U. S. 301, 304, 32 L. ed. 946, 947; Hyman v. Chales, 12 Fed. 855; U. S. v. Jailer of Fayette Co., 2 Abb. U. S. 265.

8 Hyman v. Chales, 12 Fed. 855.
9 Jewett v. Garrett, 47 Fed. 625.

10 Ibid.

11 Colosino v. Pittsburgh & L. E. R. Co., 210 Fed. 550; Sewchulis v. Lehigh Valley Coal Co., C. C. A., 233 Fed. 423, supra, $$ 64, 163, 164c, 1640, 166-166b.

12 Kaufman v. Garner, 173 Fed. 550.

13 Kaufman v. Garner, 173 Fed. 550; Higham v. Iowa State Travelers' Ass'n, 183 Fed. 845. see supra, $$ 163, 167a.

14 Goodman v. City of Ft. Collins, C. C. A., 164 Fed. 970.

$ 455b. Amendment of writs and process. The Revised Statutes provide that “No summons, writ, declaration, return, process, judgment, or other proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form ; but such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to wit, without regarding any such defect, or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, as the cause thereof; and such court shall amend every such defect and want of form, other than those which the party demurring so expresses; and may at any time permit either of the parties to amend any defect in the process or pleading, upon such conditions as it shall, in its discretion and by its rules, prescribe. "1 It has been held: that an amendment may add the date to a writ, and the signature of the clerk, when it issued from his office, and a description of the defendant in his official capacity; 4 that where the State statute permits a writ of attachment to be amended by the addition of a seal, such a writ may be so amended by the Federal Court after a removal ; 5 that an omission in the papers upon which an attachment has been granted may be supplied by an amendment in a case where the State practice does not permit such an amendment; 6 that petitions and bonds on removal are process within the statute and may be amended in a proper case; 7 that amendments of pleadings will

$ 455b. iU. S. R. S., $ 954. See Parks v. Turner, 12 How. 39, 46, 13 L. ed. 883, 887; Roach v. Hulings, 16 Pet. 319, 10 L. ed. 979; Tilton v. Cofield, 93 U. S. 163, 167, 23 L. ed. 858; Jacob v. U. S., Brock 520, 525; Rosenbach v. Dreyfuss, 1 Fed. 391; U. 8. v. Batchelder, 9 Int. Rev. Rec. 98; Warren v. Moody, 9 Fed. 673; Thomas v. U. S., 15 Ct. Cl. 242; Russell v. U. S., 15 Ct. Cl. 168, Gulf, C. & S. F. Ry. Co. v. James, 48 Fed. 148, 150; Am. Alkali Co. v. Campbell, 113 Fed. 398; Great Northern Ry. Co. v. Herron, C. C. A., 136 Fed. 49; U. S. R. S., $$ 636, 948, 914, 5595, 5596.

2 Gilbert v. South Carolina I. & W. I. Exposition Co., 113 Fed. 523.

3 Bryan v. Ker, 222 U. S. 107, 113, 56 L. ed. 114.

4 Hastings v. Herold, 184 Fed. 759.

5 Wolf v. Cook, 40 Fed. 432.

6 Bowden v. Burnham, 59 Fed. 752, 754; Erstein v. Rothschild, 22 Fed. 61, 64; Booth v. Denike, 65 Fed. 43, supra, $ 207, infra, $ 470.

7 Kinney v. Columbia Sav. & L. Ass'n, 191 U. S. 78, 48 L. ed. 103; infra, 8 546.

« ΠροηγούμενηΣυνέχεια »