Service of citation by a plaintiff in error upon the defendant
in error by depositing in the post office a copy of the same,
postage paid, addressed to the attorney of the defendant in error
at his place of abode is an insufficient service.
The decision of the supreme court of a state in a case in which
application
Page 144 U. S. 127
for removal to the circuit court of the United States had been
made in the trial court and denied, that, as no appeal was
prosecuted from the final judgment, the order denying the
application to remove was not open to review, and its judgment
thereupon dismissing the appeal from the orders refusing to set
aside the judgment of the court below, rest upon grounds of state
procedure, and present no federal question.
The case is stated in the opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
We gather from the record that this was an action of ejectment
commenced March 9, 1881, in the Superior Court in and for the
County of Sonoma, California, against some one thousand defendants,
of whom two or three hundred, having filed separate answers to the
complaint, were awarded separate trials, which were set down for
December 13, 1881, and by the court continued until the 14th. On
that day, a motion by plaintiff for a continuance, on affidavit,
was made and overruled, whereupon a petition and bond for the
removal of the cause to the Circuit Court of the United States for
the Northern District of California were filed by the plaintiff.
This application, after argument and consideration, was denied
December 15, 1881, as to each of the defendants who had obtained
separate trials, on the ground that it was made too late, and the
cases as to them, being called for trial, were severally dismissed
for want of prosecution.
Upon the third of January, 1882, plaintiff filed motions to set
aside the several orders of dismissal and to vacate the orders
denying the application for removal, and these motions were heard
and denied on February 13, 1882. Plaintiff thereupon gave notice of
appeal to the Supreme Court of California from the orders of the
superior court made on February 13, and the appeals, having been
prosecuted, were dismissed by
Page 144 U. S. 128
that court on May 26, 1886, and to review that judgment this
writ of error was sued out.
The supreme court held that plaintiff should have appealed from
the judgments of the superior court dismissing the suit, and that
had such appeal been taken the order of refusal to transfer to the
circuit court of the United States might have been considered, but,
as there was no appeal from the final judgments, the court could
not review that order. The writ of error from this Court was
allowed February 24, 1888, by the chief justice of the state
supreme court, by whom a citation was signed.
The only proof of service of this citation is an affidavit that
notice of citation was given to defendants' attorneys
"by depositing in the post office at San Francisco, Cal., a copy
of said citation, postage paid, addressed to said attorneys at
their respective places, to-wit: [here follow names of the
attorneys as residing at Santa Rosa], all of the County of Sonoma,
on the 29th day of September, A.D. 1888; that on the day of said
service there was a regular communication by mail between San
Francisco and Santa Rosa."
The appearance of none of the defendants in error has been
entered in this Court, nor does the record disclose any notice of
the pendency of the writ or waiver thereof.
Assuming the sufficiency of the affidavit and that it
established what would be a proper service under the laws of
California (Cal.Code Civil Proc. §§ 1012, 1013; 3 Deering, Codes
& Statutes 416), in respect of which we express no opinion, the
question presents itself whether such a service of citation to this
Court can be sustained. The statute provides that "the adverse
party shall have at least thirty days' notice," Rev.Stat. § 999,
and the citation is a summons to bring him in, which, under
subdivision five of rule eight, must be served before the return
day. Service may be had upon his attorney or counsel with like
effect as upon the party himself, but when counsel of record is
dead, it cannot be served on his personal representative, nor even
on his partner, if not regularly appearing on the record as counsel
in the cause.
Bacon v. Hart,
1 Black 38. No attorney or solicitor can withdraw
Page 144 U. S. 129
his name after he has once entered it upon the record without
the leave of the court, and while his name continues there, the
opposite party has a right to treat him as the authorized attorney
or solicitor, and the service of notice upon him is valid.
United States v.
Curry, 6 How. 106. In
Fairfax v.
Fairfax, 5 Cranch 19,
9 U. S. 21, where
the defendant below intermarried after the judgment and before the
service of the writ of error, the service of the citation upon the
husband was held sufficient.
The necessity of the actual issue and actual service of
citation, except in cases of appeals allowed in open court, and in
the absence of equivalent notice or waiver, is reiterated in many
cases, while much liberality is exercised in permitting service to
be made during the return term, or a new citation to be issued,
where the circumstances invoke the discretion of the court.
Hewitt v. Filbert, 116 U. S. 142;
Dayton v. Lash, 94 U. S. 112.
The citation may be waived by a general appearance,
Villabolos v. United
States, 6 How. 81,
47 U. S. 90, or
by the acceptance of service of a defective citation,
Bigler v.
Waller, 12 Wall. 142, or by action equivalent to
the acknowledgment of notice,
Goodwin v. Fox, 120 U.
S. 775.
But none of the cases gives color to the view that the service
or acknowledgment or waiver can be other than personal on or by the
party or his attorney.
By the thirteenth equity rule, it is provided that
"The service of all subpoenas shall be by a delivery of a copy
thereof by the officer serving the same to the defendant
personally, or by leaving a copy thereof at the dwelling house or
usual place of abode of each defendant with some adult person who
is a member or resident in the family,"
and service or citation upon parties in this way would doubtless
be sufficient. But we cannot be governed in the matter of our own
process by the varying laws of the states and territories upon the
subject, and actual notice, or notice directed by rule or special
order, must be shown before we can treat parties as properly in
court.
This case has been upon our docket since October 9, 1888,
Page 144 U. S. 130
and been reached for argument and submitted upon a brief filed
for plaintiff in error. It is now too late to assert jurisdiction
over defendants in error, and the writ of error must therefore be
dismissed.
We should add that the same result would follow if the citation
had been duly served, as the record presents no federal question
upon which to maintain our jurisdiction. The decision of the
Supreme Court of California that, as no appeal was prosecuted from
the final judgments, the order denying the application to remove
was not open to review, and its judgment thereupon dismissing the
appeal from the orders refusing to set aside the judgments of the
court below, rest upon grounds of state procedure, with which it is
not our province to interfere.
Writ of error dismissed.