171 F. 778 | U.S. Circuit Court for the District of Western Missouri | 1909
The substantial question presented by the pleas filed herein arises in this manner. Under the laws of this
At the March rules of this court defendants entered their appearance as commanded in the chancery subpoenas served upon them, and have severally demurred and pleaded to the amended petition or bill to foreclose mechanic’s lien, averring want of jurisdiction of this court over them and failure to commence the suit within the 90 days provided by the statute. These «pleas and demurrers were set down for hearing, and have been fully presented and submitted by solicitors for the respective parties, in oral arguments and on written briefs. In this state of the record the question raised for decision is this: Were the proceedings taken to bring defendants before the court to answer the demands of the moving party, plaintiff or complainant, commenced within the statutory period of 90 days? It is needless to observe this court, on its common-law side, is competent to neither foreclose the mechanic’s lien set forth by plaintiff, nor to afford plaintiff any relief against its fail-
It will be conceded an action at law is commenced by the filing of a petition and taking out writ of summons thereon; but in this case, as has been seen, the summons issued when the original petition was filed was returned by the marshal, under direction from counsel for plaintiff, without service or attempted service thereof. True, on praecipes filed for that purpose after the bar of the statute had fallen, chancery subpoenas were issued by the clerk and were served on defendants; but there was at this time no bill of complaint on file praying such process. Equity rule No. 23 provides:
“Prayer for Process. — The prayer for process of subpoana in the bill shall contain the names of all the defendants named in the introductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact, so that the court may take order thereon as justice may require, upon the return of the process.”
Equity rule 11 provides:
“No process of subpoena shall issue from the clerk’s office in any suit in equity until the bill is filed in the office.”
Equity rule 12 provides:
“Whenever a bill is filed the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff, which shall be returnable into the clerk’s office the next rule day, or the next rule day but one, at the election of the plaintiff, occurring after twenty days from the time of the issuing thereof,” etc.
Under the rules the clerk was without authority to issue the subpoenas issued and served in this case. Thereafter, and beyond the 90 days prescribed by the statute, there was filed with the clerk the amended petition or bill to foreclose a mechanic’s lien. This was filed in the law action on the law side of the court, and, if effective for any purpose, operated to supersede the original pleading. If it had been filed on the equity side of the court as an original bill, and chancery subpoena had issued thereon, it would have been vulnerable to demurrer for three reasons: It contains no- prayer for process, as required by the rules; it was filed after the time prescribed in the statute for foreclosing the lien asserted had expired; and there is no excuse for the delay pleaded therein. It has been held a bill of complaint in equity which omits prayer for process is demurrable. Goebel v. American. Railway Supply Co. (C. C.) 55 Fed. 828; U. S. v. Agler (C. C.) 62 Fed. 824. However, this amended petition or bill to foreclose was filed in the law action, where the matters set forth therein are not cognizable over the objections of defendants, and hence demurrable.
It follows, as the law action, timely commenced by plaintiff, was abandoned by the voluntary recall of the summons issued theron by counsel for plaintiff, and an attempt was made to proceed in equity after the expiration of the 90 days prescribed by the statute creating
The demurrers and pleas are therefore sustained.