When the court below has not acquired jurisdiction over a
defendant by a valid service of process upon him, a judgment
against him can be reviewed here through a writ of error directly
sued out to this Court.
While it was the undoubted purpose of Congress in enacting in
the Act of June 1, 1872, c. 255, § 6, embodied in Rev.Stat. §. 914,
that the
"practice, pleadings and forms and modes of proceeding in civil
causes, other than equity and admiralty causes, in the circuit and
district courts shall conform, as near as may be to the practice,
pleadings and forms and modes of proceeding existing at the time in
like causes in the courts of record in the state within which such
circuit or district courts are held, any rule of court to the
contrary notwithstanding,"
to bring about a general uniformity in federal and state
proceedings in civil cases, and to confer upon suitors in courts of
the United States the advantage of
Page 168 U. S. 619
remedies provided by state legislation, yet it was also the
intention to reach that uniformity largely through the discretion
of federal courts, exercised in the form of rules, adopted from
time to time, so regulating their own practice as might be
necessary or convenient for the advancement of justice and the
prevention of delays in proceedings. The summons in this case was
issued under a general rule adopted to make
proceedings in the district court conform to those existing at
that time under the state statutes, and if the court has not
changed its rules to make its proceedings conform to subsequent
statutes changing the state proceedings, it is to be presumed that
its discretion was legitimately exercised both in adopting and in
maintaining the rule.
This was an action brought in the District Court of the United
States for the District of Colorado by Frank Adams, receiver of the
Commercial National Bank of Denver, against J. B. Shepard, on a
promissory note, dated June 7, 1893, wherein said Shepard promised
to pay to the said bank, 30 days after date, the sum of
$20,000.
A writ of summons, in the form prescribed by the rule of that
court, was sued out against the said defendant on the 24th day of
August, 1895, whereby he was required to appear and demur or answer
to the complaint filed in said action in said court within ten days
(exclusive of the day of service) after the summons should be
served on him, if such summons should be made within the County of
Arapahoe; otherwise within forty days from the day of service.
On August 27, 1895, the deputy marshal made return of said writ
as served that day on the defendant at Denver, County of
Arapahoe.
Within ten days after the service of said summons, to-wit, on
the 4th day of September, 1895, the defendant, by his attorneys,
specially appeared and moved the court to quash the summons for the
following reasons:
"First. Said summons is not such a summons as is provided for by
the statutes of Colorado. The said summons is made returnable and
requires the defendant to appear and answer in this action in this
Court within ten days from the day of the service of said summons,
instead of thirty days, as provided by the statutes of
Colorado."
"Second. The copy of said summons served upon said
Page 168 U. S. 620
defendant is not certified to as a true copy by the clerk of
this honorable court."
Thereafter, to-wit, on the 4th day of January, 1896, the court,
after hearing argument of counsel, overruled said motion, and, the
defendant electing to stand by said motion, rendered judgment in
favor of the plaintiff and against the defendant according to the
prayer of the complaint.
A bill of exceptions was signed, and a writ of error allowed to
the Supreme Court of the United States.
It appears by the bill of exceptions that, on March 17, 1877,
the General Assembly of the State of Colorado passed an act
entitled "An act providing a system of procedure in civil actions
in the courts of justice of the State of Colorado," which act
contained the following provisions:
"Civil actions in the district courts and county courts shall be
commenced by the filing of a complaint with the clerk of the court
in which the action is brought and the issuing of a summons
therein, provided that, after the filing of the complaint, a
defendant in the action may enter his appearance therein,
personally or by attorney, which appearance shall be equivalent to
personal service of the summons upon him."
"The time in which the summons shall require the defendant to
answer the complaint shall be as follows: 1st. If the defendant is
served within the county in which the action is brought, ten days.
2d. If the defendant is served out of the county, but in the
district in which the action is brought, twenty days. 3d. For all
other cases, forty days."
The summons in this cause was issued and made returnable under
and in pursuance of a general rule of the District Court of the
United States for the District of Colorado, adopted on October 10,
1877, which is in the following terms:
"Actions at law shall be commenced by filing a complaint with
the clerk, upon which a summons shall be issued, directed to the
defendant, requiring him to appear and demur or answer to the
complaint within ten days from the day of service, if such service
shall be made within the county from which the summons was issued,
and within forty days from the day of service if such service shall
be made elsewhere in the district.
Page 168 U. S. 621
Except as provided in these rules and in the laws of the United
States, the summons and the pleadings, and proceedings in the
action shall be as prescribed in the laws of the state."
It further appears that the General Assembly of the State of
Colorado passed an act on April 7, 1887, repealing the above
provisions in the act of 1877, and enacting as follows:
"Civil actions shall be commenced by the filing of a complaint
with the clerk of the court in which the action is brought, or by
the service of a summons."
"The complaint must be filed within ten days after the summons
is issued, or the action may be dismissed without notice, and in
such case the court may, in its discretion, if it shall be of the
opinion that the action was vexatiously commenced, tax a reasonable
attorney's fee as costs in favor of defendant, to be recovered of
plaintiff or his attorney."
It also appears that the said General Assembly, on April 19,
1889, passed an act, since then and now in force, containing the
following provision:
"Section thirty-four of an act entitled 'An act to provide a
code of procedure in civil actions for courts of record in the
State of Colorado, and to repeal all acts inconsistent therewith,'
approved April 7, 1887, is hereby amended to read as follows:"
"The summons shall state the parties to the action, the state,
county and court in which it is brought, and require the defendant
to appear and answer the complaint within twenty days after the
service of the summons, if served in the county in which the action
is brought; or if served out of such county or by publication,
within thirty days after the service of the summons, exclusive of
the day of service, or that judgment by default will be taken
against him according to the prayer of the complaint, and shall
briefly state the sum of money or other relief demanded in the
action; but the summons shall not be considered void or erroneous
on account of an insufficient statement of the relief demanded,
unless the same is manifestly misleading. If a copy of the
complaint be not served with the summons, or if the service be made
out of the state, ten days additional to the time specified in
the
Page 168 U. S. 622
summons shall be allowed for appearance and answer, but the form
of the summons shall be the same in all cases."
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This case is brought here, under section 5 of the Act of March
3, 1891, as one involving a question of the jurisdiction of the
District Court of the United States for the District of Colorado,
and the first contention we have to meet is that of the defendant
in error, that the case is not really within the meaning of that
section of said act, but presents only the case of an alleged error
in the judgment of the district court, redress for which should
have been sought in the circuit court of appeals. It is said that
the question of whether or not the district court acquired
jurisdiction by a proper service of process is not one which
involves the jurisdiction of the court within the meaning of that
term as used in the act, and the case of
Smith v. McKay,
161 U. S. 355, is
cited as sustaining such a view.
In the case referred to, the respective parties were duly in
court, and the subject matter of the controversy was within the
jurisdiction of the court, but it was claimed by the defendant that
the plaintiff, instead of asserting his right by a bill in equity,
should have proceeded by an action at law, which afforded an
adequate remedy. The court below was of opinion that the plaintiff
was not wrong in seeking his remedy in equity. Thereupon the
defendant brought the case here directly, contending that the case
involved the question of the jurisdiction of the circuit court
within the meaning of section 5 of the Act of March 3, 1891. But it
was held here that the court, in deciding that the plaintiff's
remedy was in equity, and not at law, was in the lawful exercise of
its jurisdiction, and that if
Page 168 U. S. 623
the court was wrong in so deciding, it was an error for which
the defendant should have sought his remedy in the circuit court of
appeals.
The present case differs from
Smith v. McKay in the
essential feature that the contention is that the court below never
acquired jurisdiction at all over the defendant by a valid service
of process. In such a case, there would be an entire want of
jurisdiction, and a judgment rendered without jurisdiction can be
reviewed on a writ of error directly sued out to this Court.
The case, then, being properly before us, we must next consider
whether the court below erred in assuming and exercising
jurisdiction in the cause by rendering a final judgment against the
defendant.
It is contended that the defendant had not been brought within
the jurisdiction of the court by a proper writ of summons, and
that, the defendant having duly asserted an objection, the judgment
entered is void.
It is not denied that the writ in question was in conformity
with the existing rule of the district court of the United States
regulating the service of process, but it is claimed that the rule
and proceedings thereunder are invalid because they did not conform
to the provisions of the act of the General Assembly of Colorado
providing a system of procedure in civil actions in the courts of
justice of that state.
The proposition is based on the supposed meaning and effect of
the Act of Congress of June 1, 1872, as found in section 914 of the
Revised Statutes, in the following terms:
"The practice, pleadings and the forms and modes of proceeding
in civil causes, other than equity and admiralty causes, in the
circuit and district courts shall conform as near as may be to the
practice, pleadings and forms and modes of proceeding existing at
the time in like causes in the courts of record of the state within
which such circuit or district courts are held, any rule of court
to the contrary notwithstanding."
This section is construed by the plaintiff in error as
constituting a peremptory order or direction to the district and
circuit courts to make their rules regulating the terms and
Page 168 U. S. 624
service of their writs to strictly conform to the provisions of
the state statutes regulating such matters.
Waiving any inquiry whether it is competent for a private party,
duly served with process in pursuance of the directions of an
existing general rule of a court of the United States, to bring
into question the validity of such a rule, we think that, upon a
reasonable construction of section 914, and of cognate sections
presently to be mentioned, the validity of the summons and judgment
in the present case can be sustained. It is obvious that a strict
and literal conformity by the United States courts to the state
provisions regulating procedure is practically impossible, or at
least not without overturning and disarranging the settled practice
in the federal courts.
The state Code of Colorado provides that civil actions shall be
commenced by the issuing of a summons or the filing of a complaint;
that the summons may be issued by the clerk of the court or by the
plaintiff's attorney; it may be signed by the plaintiff's attorney;
it may be served by a private person not a party to the suit. All
writs and process issuing from a federal court must be under the
seal of the court, and signed by the clerk, and bear teste of the
judge of the court from which they issue. Sec. 911, Rev.Stat. The
process and writs must be served by the marshal or by his regularly
appointed deputies. Secs. 787, 788, Revised Statutes.
The very section (914) relied on by the plaintiff in error takes
notice of the impossibility of an entire adoption of state modes of
proceeding by providing that conformity is only required "as near
as may be."
Section 915, Revised Statutes, provides that in common law cases
in the circuit and district courts, the plaintiff shall be entitled
to similar remedies, by attachment or other process, against the
property of the defendant, which are provided by the laws of the
state in which such court is held, and that such circuit or
district courts may, from time to time, by general rules, adopt
such state laws as may be in force in the states where they are
held in relation to attachments and other process.
Section 916, Revised Statutes, provides that the party
recovering
Page 168 U. S. 625
a judgment in any common law cause in any district or circuit
court shall be entitled to similar remedies upon the same, by
execution or otherwise, to reach the property of the judgment
debtor, as are now provided by laws of the state in which the court
is held, or by any such laws hereafter enacted, which may be
adopted by general rules of such circuit or district court, and
that such courts may from time to time, by general rules, adopt
such state laws as may hereafter be in force in each state in
relation to remedies upon judgments as aforesaid, by execution or
otherwise.
Section 918, Revised Statutes, provides
"that the several circuit and district courts may, from time to
time and in any manner not inconsistent with any law of the United
States or with any rule prescribed by the Supreme Court, make rules
and orders directing the returning of writs and processes, the
filing of pleadings, the taking of rules, the entering and making
up of judgments by default, and other matters in vacation, and
otherwise regulate their own practice as may be necessary or
convenient for the advancement of justice and the prevention of
delays in proceedings."
We think it is sufficiently made to appear by these citations
from the statutes that while it was the purpose of Congress to
bring about a general uniformity in federal and state proceedings
in civil cases and to confer upon suitors in courts of the United
States the advantage of remedies provided by state legislation, yet
that it was also the intention to reach such uniformity often
largely through the discretion of the federal courts, exercised in
the form of general rules, adopted from time of time and so
regulating their own practice as may be necessary or convenient for
the advancement of justice and the prevention of delays in
proceedings.
In
Nudd v. Burrows, 91 U. S. 426, it
was sought to interpret the Act of June 1, 1872 (sec. 914, Revised
Statutes), as bringing the federal judges, when charging a jury in
Illinois, within the practice act of that state, directing that the
court, in charging the jury, shall instruct them only as to the law
of the case, and give no instructions unless reduced to writing.
But this Court held that the statute was not intended to have
Page 168 U. S. 626
such an application, and that the course of the court in
charging juries was not within the act.
In
Railroad Co. v. Hurst, 93 U. S.
291, a similar view was taken, and it was held that, in
respect to submitting interrogatories to the jury and to
entertaining motions for a new trial, the circuit court of the
United States was not, by reason of the provisions of the Act of
June 1, 1872, constrained to follow a state law regulating those
matters, and it was said:
"The conformity is required to be 'as near as may be' -- not as
near as possible, or as near as may be practicable. This
indefiniteness may have been suggested by a purpose. It devolved
upon the judges to be affected the duty of construing and deciding,
and gave them the power to reject, as Congress doubtless expected
they would do, any subordinate provision in such state statute
which, in their judgment, would unwisely encumber the
administration of the law or tend to defeat the ends of justice in
their tribunal."
To the same effect is
In re Chateaugay Ore & Iron Co.,
Petitioner, 128 U. S. 544,
where it was held that the practice and rules of the state court do
not apply to proceedings taken in a circuit court of the United
States for the purpose of reviewing in this Court a judgment of
such circuit court, and that such rules and practice, embracing the
preparation, perfection, settling, and signing of a bill of
exceptions, are not within the "practice, pleadings, and forms and
modes of proceeding" which are required by section 914 of the
Revised Statutes to conform as "near as may be" to those existing
at the time in like causes in the courts of record of the
state.
In
Southern Pacific Company v. Denton, 146 U.
S. 202, the subject and the cases were reviewed at some
length, and it was held that a statute of a state which makes an
appearance in behalf of a defendant, although in terms limited to
the purpose of objecting to the jurisdiction of the court, a waiver
of immunity from jurisdiction by reason of nonresidence, is not
applicable to actions in a circuit court of the United States held
within the state, under Revised Statutes § 914.
Luxton v. North
River Bridge Co., 147 U. S. 337;
Lincoln v. Power, 151 U. S. 436.
Page 168 U. S. 627
The general rule, under which was issued the summons by which
the plaintiff in error was brought into court, was adopted by the
District Court of the United States for the District of Colorado on
October 10, 1877, and it was in substantial conformity with the
statute of Colorado then in force. Several changes in the laws of
Colorado, regulating forms of procedure and the times given for
defendants to appear to writs of summons, have been since enacted,
but the district court has not seen fit to alter its rules, from
time to time, in subserviency to such changes. We have a right to
presume that the discretion of the district court was legitimately
exercised in both adopting and maintaining the rule in question,
and its judgment is accordingly
Affirmed.
MR. JUSTICE WHITE and MR. JUSTICE PECKHAM dissent.
