47 F. 625 | U.S. Circuit Court for the District of New Jersey | 1891
The facts upon which these motions are based are these: In December, 1890, Mr. Bower, an attorney residing and practicing in the city of New York, and who had been duly admitted to 'practice in this court, desiring to commence an action at law at the suit of the plaintiff, William Cornell Jewett, a resident of the state of New Jersey, against the defendants, Robert Garrett, William F. Frick, and Ferdinand C. Latrobe, residents of the state of Maryland, applied to the clerk of this court for a writ of summons, according to the practice which obtains in this circuit. At the same time he requested the clerk to obtain from the marshal of the district a proper and formal appointment of a special deputy or bailiff, to whom the service of the writ might be intrusted. In response to these requests the clerk immediately sent to Mr. Bower a writ of summons, sealed with the seal of this court, and properly signed by him, but without having inserted in it the names of the parties plaintiff and defendant, and without containing any statement of the cause, or the technical name of the action which the plaintiff intended to institute. The clerk also procured from the marshal of this district, as requested, a form used by him in deputizing a special bailiff or officer to make service of writs of summons, or other process, in which the name of the person to be authorized to serve this writ was not stated, but the • deputation was officially signed by the marshal. These two papers were sent to Mr. Bower, as he had requested. Upon their receipt, Mr. Bower, or his partner, a Mr. Graeffe, tested the writ December 12, 1890, inserted the names of the plaintiff and defendant in their proper place, stated in exact terms the style of action brought, and made the writ returnable on the fourth Monday of March, 1891. Mr. Bower’s name was inserted in the form of the appointment of special deputy, and he immediately proceeded to make the service of the writ, as he was therein empowered. The service which he made appears in the return thereof, annexed to the writ. It is as follows:
“I served the within writ on the defendant Robert Garrett on the 18th day of Dee., A. D. 1890, at Jersey City, in the dist. of New Jersey, by delivering to and leaving with him the copy thereof, and at the same time showing him the original, with the seal of the court attached, and informing him of the contents.
“W. Budd Deacon, U. S. Marshal.
“By Samuel ~W. Bower, Special Deputy Marshal.”
This service was in fact made upon Mr. Garrett in the station of the Central Railroad of New Jersey, in Jersey City, as he was entering a car to proceed to his residence in Baltimore, Md. He had for that purpose left his hotel in New York city only a short time previously, and, crossing the Central ferry over the North river, had proceeded directly to the railroad station, where the train which he was to take was awaiting him. When the service of the writ was made upon him, Mr. Garrett had been
It is now urged by counsel for Mr. Garrett that under those circumstances the writ of summons should be declared to be void, and that the pretended service should be held invalid. So far as the validity of the writ itself is concerned, the contention is that it should he declared void, and of no effect, because it was when issued by the clerk not a process bf this court, but simply a blank paper, to which the signature of the clerk, and the seal of the court had been attached; that, although in form a writ of summons, in effect it did not summon any one into court to answer any complaint of any one in any named action, or to the damage of any one, and hence could be of no effect or force. The statute governing the issue of writs and process from the courts of the United States requires that such writs and process shall be under the seal of the court, and shall be signed by the clerk thereof, (Rev. St. U. S. § 911;) and there is a further requirement that all process must bear teste from the day of its issue, (Id. § 912.) Other than in these necessary particulars, neither the form of the writ or process, nor its contents, nor the maimer nor method of its delivery to the marshal for service, nor its formal drafting, is sought to he controlled or affected by any legislation of congress, further than to ordain generally that the writ shall, as to those particulars, as far as possible, harmonize with, and be similar to, the writs and processes obtaining under the Code of Procedure of the state in which the court has jurisdiction. There is no limitation of power to draft a writ of summons to the clerks of the federal courts. Any suitor desiring to do so may draft his own writ; and, if any suitor is so enabled, it follows that the duly-authorized attorney of such suitor may do the like. To give to such a drafted paper, in form a writ, efficient power to compel the appearance ‘in the forum chosen’ of the defendant named in it, it must be dignified by the seal of the court, and attested by the signature of the clerk. These added tb the drafted form transform the invalid paper into a vitalized writ of the court. The only official acts of the clerk as to process required by statute are the affixing of.the seal of the court and the signing of the writ itself. If lie were requested by a suitor to prepare the whole writ, from the mandatory clause to the teste, he could lawfully and properly refuse to comply, and the law would justify him in such refusal. It is no part of his duty as clerk to act as scrivener for plaintiffs. It is obvious, therefore, that the objection lodged against this writ, to the effect that it was wholly in the handwriting of the plaintiff’s attorney, except the signature of the clerk, can have no force.
But it is further insisted that, admitting the power of the suitor or his attorney to draft the writ, it remains a necessary prerequisite to
It is further alleged that the writ should be quashed because it was not indorsed by the name of any attorney of this court. This is undoubtedly SO, and amounts to a technical error; but I think it is clearly within the power of the court to amend the writ in this particular by permitting the substitution of the name of an attorney of this court for that which now appears upon the writ, or by admitting the attorney who did issue the writ, and who did indorse it, to practice in this court. Upon the argument an offer to comply with either of these alternatives, as the court should direct, was made by the plaintiff’s counsel. In this respect I think the writ may be amended, and I do not further consider this as an objection.
Nor can I see any force in the first reason assigned to justify the setting aside the service of this writ. It is admitted that the service was made by Mr. Bower, who derived his authority, if any he had, to make such service, from a special deputation issued by the marshal to him, in
The more serious question in this case relates to the service of the writ itself. As has been stated, it was served upon the defendant Mr. Garrett as he was entering a car in the station of the New Jersey Central Railroad Company, at Jersey City, to proceed en route to Baltimore. He
“No civil suit shall be brought before either of said courts against any person, by any original process or proceedings, in any other district than that whereof he is an inhabitant; but, where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. ”
The apparent contradiction of these clauses of the act gave rise to much controversy, but the question is now no longer an open one as to the meaning. Mr. Justice Field said in Wilson v. Telegraph Co., 34 Fed. Rep. 561, the concluding clause is to be read as a proviso to the general provision that no civil suit shall be brought except in the district whereof the defendant is an inhabitant. The clauses, with this construction, would then read:
“That no civil suit shall be brought before either of said courts against any person, by any original process or proceeding, in any other district than that whereof he is an inhabitant: provided, nevertheless, that where the jurisdiction is founded upon the fact that the action is between citizens of different states only such suits may be brought in the district of the residence of either the plaintiff of the defendant.”
This construction has been approved by very many of the circuit courts and by the supreme court. ’ Fales v. Railroad Co., 32 Fed. Rep. 673; St. Louis, etc., R. Co. v. Terre Haute, etc., R. Co., 33 Fed. Rep. 385; Loomis v. Gas Co., Id. 353; Swayne v. Insurance Co., 35 Fed. Rep. 1; McCormick, etc., Co. v. Walthers, 134 U. S. 41, 10 Sup. Ct. Rep. 485.
If it be true, as it is alleged in the writ itself in this case, that the plaintiff is a resident of the state of New Jersey, it must be admitted that, under this statute, he had a right to commence a suit in the circuit court for the district of New Jersey, provided the jurisdiction of the court could attach to the defendants. A federal court acquires jurisdiction over parties only by a service of process, or by their voluntary appearance to the action; and such service of process must be made within the ter
“This matter was called up during Judge Davis’ visit to the state, and the authorities were examined, and Judge Davis, Judge Drummond, and myself all came to the conclusion, in the light of the authorities, that this court has no jurisdiction over a citizen of another state who was temporarily found here long enough to be served with process; that the acts of congress conferring jurisdiction do not contemplate that the defendant shall be sued out of the state where'he resides; that he has the privilege of litigating a question in the federal court between himself and a citizen of another state in the state of his own residence, — and the plea was thereupon sustained.”
As this construction of the act was quasi antagonistic to the words of the statute, and contrary to the common-law practice, it can only be, and was, indeed, justified upon the ground of public policy, in that it was a hardship to permit a plaintiff living in one state to commence a suit against a defendant residing in another* state in any district where the defendant might happen to be for the time being, and where such presence in the district was only temporary. Any other construction of the statute of 1789 would have made a defendant liable to be sued in any civil suit any where within the limits of the United- States that he might be found. If such right was vested in the plaintiff, so as to commence a suit under such circumstances, it is very plain that he might harass and annoy the defendant in the extreme. It was undoubtedly, under the act referred to, the right of the defendant to have a suit, instituted against him in the federal courts, brought in the district of his residence, or where he might be sojourning. Any other construction would lead to great oppression. But the act of 1887 is a re
The motions are denied.