Imágenes de páginas



$ 90.

§ 91.

Jurisdiction acquired by process or appearance of parties. § 90 a. Jurisdiction, how acquired. § 90 b. Jurisdiction depends on notice by service of process. § 90 c. Personal service essential to jurisdiction.

When a part of several defendants cannot be served. § 91 a. At law. § 91 b. In equity. $ 91 c. On corporations. § 91 d. Insufficient service on foreign corporation. § 91 e. A personal privilege, and may be waived. § 91 f. Service by publication. § 91 g. Waiver by irregularities.

Process of arrest, restitution of. $ 92 a. Process by attachment. $ 92 b. Return and proof of service.

$ 92

§ 90. Jurisdiction acquired by process or appearance of parties.—That when, in any suit commenced in any circuit court of the United States to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon, the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur, by a day certain, to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be. Or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks. And in case such absent defendant shall not appear, plead, answer, or demur within the time so limited, or within some further time, to be allowed by the court in its discretion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district. But said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein within such district. And when a part of the said real or personal property against which such proceeding shall be taken shall be within another district, but within the same State, said suit may be brought in either district in said State. Provided, however, that any defendant or defendants, not actually personally notified as above provided, may at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said circuit court, and thereupon the said court shall make an order setting aside the judgment therein, and permitting said defendant or defendants to plead therein, on payment by him or them of such costs



as the court shall deem just; and thereupon said suit shall be proceeded with to final judgment, according to law. (Act of March 3, 1875, sec. 8; Supp. Rev. Stats. 173; Rev. Stats. sec. 738.)

Note. -ORIGINAL PROCESS RESTRICTED WHERE PARTY IS AN INHABITANT. - Section 8 of the Act of 1875 is an extension of the Revised Statutes, section 738; and under the Act of March 3, 1887, original process of the United States courts will not run throughout the United States, but only in the district. except in the particular cases and to the extent provided for in U. S. Rev. Stats. sec. 738. (Bourke v. Amison, 32 Fed. Rep. 710.)

§ 90 a. Jurisdiction, how acquired.—A Federal court acquires jurisdiction over parties only by a service of process, or by their voluntary appearance, and only by service of process within the district,” and not then if he is but temporarily within the district.3 A person who comes within the district merely for the purpose of attending a trial in a State court cannot be served with process issuing out of a United States court;* and if served with summons while attending the trial of the cause in the circuit court as a party, the service will be set aside.5 Where defendant, not an inhabitant of the district, is inveigled or enticed into the district by false representations or deceptive contrivances, service of process on him within the district is illegal.6 If a non-resident comes into the district for the purpose of pleading to an indictment and giving bail, he cannot be sued before he has a reasonable time to depart.? If defendant is a non-resident of the district, the record must show with certainty that process was served upon him within the district. 8 Where one joint defendant rem ved the suit, plaintiff is entitled to process against the defendant who was not served with process in the State court at the time the cause was removed.9 If necessary parties are non-residents, their appearance may be secured under the provisions of this section, where there is property within the jurisdiction upon which a lien is claimed, 10 A marshal's return of “not found” is not a condition precedent to the making of the order con.



Such process

templated by this section; such order may be made on affidavit alone. 11 The circuit court cannot enforce the lier until it has jurisdiction of the person.

This provision is not a denial of jurisdiction, but the grant of a privilege to defendant not to be sued out of the State where he resides unless served with process, or waives his privilege by voluntary appearance. 13 cannot reach a party beyond the territorial jurisdiction of the court. 14

1 Herndon v. Ridgeway, 17 How. 424; Stevens v. Richardson, 9 Fed. Rep. 191.

2. Allen v. Blunt, 1 Blatchf. 480; Union Sugar Refi. v. Mathiesson, 2 Cliff. 304.

3 Smith v. Tuttle, 5 Biss. 159.

4 Juneau Bank v. McSpeden, 5 Biss. 64; Parker v. Hotchkiss, 1 Wall. Jr. 269; Brooks v. Farwell, 4 Fed. Rep. 166.

5 Parker v. Hotchkiss, 1 Wall. Jr. 269. Contra: Blight v. Fisher, Peters C. C. 41.

6 Steiger v. Bonn, 4 Fed. Rep. 17; Union Sugar Refi. v. Mathiesson, 2 Cliff. 304.

7 U. S. v. Bridgman, 8 M. L. Rec. 541.

8 Allen v. Blunt, 1 Blatchf. 480; Vore v. Fowler, 2 Bond, 294; McCloskey v. Cobb, 2 Bond, 16; Thayer v. Wales, 5 Fish, 448.

9 Fallis v. McArthur, 1 Bond, 100. Contra: Field v. Lownsdale, Deady, 228. See Fisk v. Union Pacific R. R. Co., 8 Blatchf. 213; 6 Blatchf. 362.

10 Mercantile Trans. Co. v. Portland & O. R. R. Co., 10 Fed. Rep. 604. 11 Forsyth v. Pierson, 9 Fed. Rep. 801; Woolridge v. McKenna, 8 Fed. Rep. 650.

12 Insurance Co. v. Bangs, 103 U. S. 435. 13 Harrison v. Rowan, Peters C. C. 489; Seget v. Thomas, 3 Blatchf. 11; Hollingsworth v. Barber, 4 Peters, 466; Kendall v. United States, 12 Peters, 524; 1Cooper v. Reynolds, 10 Wall. 308; Philadelphia W & B. R. R. Co. v. Trimble, 10 Wall. 367; Pennoyer v. Neff, 95 U. S. 714; Godfrey v. Terry, 97 U. S. 171; Brooklyn v. Ætna Life Ins. Co., 99 U. S. 62; Empire v. Darlington, 101 U. S. 87; St. Clair v. Cox, 106 U, S. 150; Pana v. Bowler, 107 U. S. 529.

14 Kendall v. United States, 12 Peters, 524; Ableman v. Booth, 21 How. 506; Pennoyer v. Neff, 95 U. S. 714.

§ 90 b. Jurisdiction depends on notice by serv. ice of process. —Notice to the defendant, actual or constructive, is essential to the jurisdiction of all courts; actual notice ought to be given in all cases where it is practicable, even in appellate tribunals. It is essential to a proceeding in rem that there should at least be construct. ive notice to adverse claimants to appear and maintain their rights, before a judgment in such a proceeding can operate as prima facie evidence. By the general law of the land, no court is authorized to render a judgment or decree against anyone, or his estate, until after due notice, by service of process, to appear and defend. Courts can acquire jurisdiction over parties in equity suits only by the service of process within the district, in compliance with equity rule 13.* A Federal court cannot acquire jurisdiction of a defendant by mere motion, without service of process or voluntary appearance of defendant.5 The rule that service of process or notice is necessary, and that without such notice the proceeding is absolutely void, applies only where original jurisdiction is exercised, and not to collateral questions. 6 A judgment against several defendants is a nullity as to one not served with process and who did not appear.? Where a judgment was obtained, without actual service of process, on a forged note, in a time of civil war, when the defendant was within the lines of the enemy, it will be set aside, together with a sale made thereunder. 8

1 Nations v. Johnson, 24 How. 195.
2 Hassall v. Wilcox, 130 U. S. 493.
3 Hollingsworth v. Barbour, 4 Peters, 466.

4 Kohn v Ryan, 31 Fed. Rep. 636; Hollingsworth v. Barbour, 4 Peters, 466.

5 Illingsworth v. Atha, 42 Fed. Rep. 141. 6 Walden v. Craig, 14 Peters, 147.

7 Shelton v Tiffin, 6 How. 163; McCallv. Carpenter, 18 How. 297; Godfrey v. Terry, 97 U. S. 171.

8 Monger v. Shirley, 87 U. 8. 20 Wall.

§ 90 c. Personal service essential to jurisdiction. The fact that the expense attending personal service is great, or that the number of defendants is large, does not authorize service by publication on non-residents. I Jurisdiction cannot be acquired by a Federal court by a constructive service of summons by publication and attachment of the property of a non-resident.2 Jurisdiction of the person of a defendant (who is an inhabitant of another State) can only be obtained, in a civil action, by service of process on his person within the district where the suit is instituted. Where a bill was not auxiliary to the original suit, or in continuance of it, the case was not a proper one for substituted service. * If a person is induced by false representations to come within the juris

« AnteriorContinuar »