By the Judiciary Act of 1789, no civil suit shall be brought
against an inhabitant of the United States by an original process
in any other district than that whereof he is an inhabitant, or in
which he shall be found at the time of serving the writ.
This provision of law is not changed by any subsequent process
act, or by the law giving jurisdiction to circuit courts in patent
cases, without regard to citizenship.
Therefore, where a suit was commenced for an infringement of a
patent right, and process was served by attaching the property of
an absent defendant, this was not sufficient to give the court
jurisdiction.
The defect of an irregular citation being signed by the clerk of
the court, and not by the judge who allowed the writ of error is
cured by an appearance in this Court; so that a motion to dismiss
the writ, when made at the term succeeding that at which the
appearance was entered, comes too late.
At an early day of the term, Mr. Pitman, counsel for the
defendant in error, moved to dismiss the writs of error upon the
ground stated below, and filed the following affidavit in support
of the motion:
"
SUPREME COURT OF THE UNITED STATES, NO. 51; DEC. TERM,
1857"
"
Edwin M. Chaffee, Trustee of Horace H.
Day,"
"
Plaintiff in Error, v. Nathaniel Hayward"
"The defendant in error in this cause moves that this cause be
dismissed, the citation herein having been signed by the clerk of
the circuit court, and not by the judge, as required by law. By his
attorney,"
"JOSEPH S. PITMAN"
"I, Joseph S. Pitman, of the City and County of Providence, and
State of Rhode Island &c., attorney at law, on oath say, that I
am and have been associated with Charles S. Bradley, Esq., in the
defense of the above cause; that he is the junior counsel in said
cause; that he left the City of Providence for Europe on the first
or second day of December, 1856; that we
Page 61 U. S. 209
had no consultation respecting the management of said cause
before his departure, Mr. Bradley expecting to return by the first
of March, 1857; that after his departure, I caused an appearance to
be entered in said cause, and did not file a motion for the
dismissal of said cause at the last term, because I did not wish to
decide on the expediency of that motion without consultation with
him; that I expected he would return in season for such
consultation, either before the court adjourned, or that I should
have opportunity to make that motion after consultation with him at
an adjourned term of this Court, which I supposed would be held as
at the December term, 1856; that to my surprise this Court
adjourned about the seventh day of March, and the opportunity was
lost, as Mr. Bradley did not return to this country until the
twenty-fourth of March, 1857."
"JOSEPH S. PITMAN"
"
RHODE ISLAND DISTRICT, ss."
"
Clerk's Office, Circuit Court of the United
States"
"On this nineteenth day of December, A.D. 1857, came the
above-named Joseph S. Pitman, and made oath that the foregoing
statements are true. Before me."
"[SEAL] Witness my hand and official seal, at Providence."
"HENRY PITMAN"
"
Clerk circuit court U.S., R.I. Dist."
Upon which motion MR. CHIEF JUSTICE TANEY delivered the opinion
of the Court.
In this case, a judgment in favor of the defendant in error was
rendered in the Circuit Court of the United States for the District
of Rhode Island, at its June term, 1856. The plaintiff sued out a
writ of error on the 27th of October, 1856, returnable to the
December term of this Court then next following; but the citation
to the defendant was signed by the clerk of the court, and not by
the judge who allowed the writ of error.
In pursuance of this writ of error, the record was filed here
and the case docketed on the 24th of November, 1856; and on the 4th
of December the defendant appeared by counsel in this Court.
A motion has been made at the present term to dismiss the case,
because the citation is signed by the clerk and not by the
judge.
The citation is undoubtedly irregular in this respect, and the
defendant in error was not bound to appear under it. And if a
motion had been made at the last term, within a reasonable time, to
dismiss the case upon this ground, it would have
Page 61 U. S. 210
been dismissed. But the appearance of the party in this Court,
without making a motion to dismiss during the first term, is a
waiver of any irregularity in the citation, and is an admission
that he has received notice to appear to the writ of error. This
point was decided in the cases of
McDonogh
v. Millaudon, 3 How. 693;
United
States v. Yulee, 6 How. 605; and
Buckingham
v. McLean, 13 How. 150. And these cases have been
recognized and affirmed in the case of
Carroll v. Dorsey,
decided at the present term.
Indeed, any other rule would be unjust to a plaintiff in error,
and is not required for the protection of the defendant. The latter
is not bound to appear, unless he is legally cited, except for the
purpose of moving to dismiss. He knows, or must be presumed to
know, whether the notice which the law requires has been served on
him or not. And if the objection is made at the first term, the
plaintiff, by a new writ and proper citation, might bring up the
case to the succeeding term. But if the defendant does not, by
motion at the first term, apprise him of the irregularity of his
proceeding in this respect, and of his intention to take advantage
of it, the plaintiff is put off his guard by the defendant's
appearance, and if the motion is permitted at the second term, he
will be delayed an entire year in the prosecution of his suit,
whenever it is the interest of a defendant in error to delay and
harass his adversary.
An affidavit has been filed by one of the counsel for the
defendant in error, stating that he is the junior counsel in the
case, and that he did not make the motion at the last term, because
the senior counsel was absent in Europe, and the deponent did not
wish to decide on the expediency of the motion to dismiss without
consulting him; that he expected him to return before the term
ended, but the court adjourned sooner than he anticipated, and the
senior counsel did not return until the court had finally adjourned
to the next term.
The facts stated in this affidavit cannot influence the decision
of the motion. The absence of one or of all the counsel employed by
one party, in pursuit of other business, furnishes no ground for
delaying a case in this Court, without the consent of the adverse
party.
The motion comes too late, and is therefore overruled.
DAY
v. No. 52
HAYWARD
The motion to dismiss in this case stands on the same ground
with that of Chaffee, trustee of
Day v. Hayward, just
disposed of, and must, for the reasons assigned in that case, be
also overruled.
Page 61 U. S. 214
MR. JUSTICE CATRON delivered the opinion of the Court.
The question of law decided below, and which we are called on to
revise, arises on the following facts: on the twenty-second day of
October, 1855, the plaintiff in error sued out a writ in the
Circuit Court of the United States for the Rhode Island District,
against Nathaniel Hayward, styling him as "of Colchester, in the
State of Connecticut, commorant of Providence, in the State of
Rhode Island," for the recovery of damages alleged to have been
sustained by the plaintiff in error, by reason of an alleged
infringement of a patent right claimed by said plaintiff.
On the same day, the marshal of the Rhode Island District made
return on the writ, that "for want of the body of the within
defendant to be by me found within my district, I have attached,"
&c., enumerating certain real estate lying in the City of
Providence, in the State of Rhode Island, and a still further
return of having made further service of the writ, by attaching all
the personal estate of the defendant in the India rubber factory of
Hartshorn & Co., and in the store or warehouse No. 7, Dorrance
Street stores &c., and
"have left true and attested copies of this writ, with my doings
thereon, with the City Clerk of the City of Providence, and with
John Sweet and William E. Himes, they being in possession of the
premises, the defendant having no known place of abode within my
district."
At the November term of the court, a declaration was filed,
Page 61 U. S. 215
containing the allegations of citizenship of the plaintiff and
defendant, and that the defendant was commorant of Providence, as
in the writ, and at the same term the defendant, in his own proper
person, pleaded to the jurisdiction of the court, that he was at
the time of the pretended service of the writ, and is, an
inhabitant of the District of Connecticut, and not an inhabitant of
the District of Rhode Island, nor was he at the time of the
pretended service of the writ within the District of Rhode Island,
praying the judgment of the court, whether it can or will take
cognizance of the action against him.
To this plea the plaintiff, by his attorney, filed a general
demurrer, on which the cause was heard, and at the June term the
court overruled the demurrer and dismissed the case for want of
jurisdiction, upon which the plaintiff sued out a writ of
error.
By the eleventh section of the Judiciary Act of 1789, it is
provided
"That no civil suit in a circuit or district court shall be
brought against an inhabitant of the United States by any original
process in any other district than that whereof he is an
inhabitant, or in which he shall be found at the time of serving
the writ."
It has been several times held by this Court as the true
construction of the foregoing section, that 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; and that
no jurisdiction can be acquired by attaching property of a
nonresident defendant, pursuant to a state attachment law. The
doctrine announced to this effect, in the case of
Toland v.
Sprague in 1838, 12 Pet. 300,
37 U. S. 327,
has been uniformly followed since, both by this Court and at the
circuits.
40 U. S. 15
Pet. 171;
58 U. S. 17 How.
424
It is insisted, however, for the plaintiff, that these rulings
were had in cases arising where the jurisdiction depended on
citizenship; whereas here the suit is founded on an act of Congress
conferring jurisdiction on the circuit courts of the United States
in suits by inventors against those who infringe their letters
patent, including all cases, both at law and in equity, arising
under the patent laws, without regard to citizenship of the parties
or the amount in controversy, and therefore the eleventh section of
the Judiciary Act does not apply, but the process acts of the state
where the suit is brought must govern, and that the Act of Congress
of May 8, 1792, so declares.
The second section of that act provides, that the forms and
modes of proceeding in suits at common law shall be the same as are
now used in the federal courts, respectively, pursuant
Page 61 U. S. 216
to the act of 1789, ch. 21, known as the process act of that
year.
This act sec. 2 declares, that until further provision shall be
made, and except where by this act "or other statutes of the United
States is otherwise provided," the forms of writs and executions,
and modes of process in suits at common law, shall be the same in
each state, respectively, as are now used or allowed in the supreme
court of the same. This was to be the mode of process, unless
provision had been made by Congress, and to the extent that
Congress had provided, the state laws should not operate.
Now the only statute of the United States then existing,
regulating practice, was the Judiciary Act of 1789, ch. 20, which
is above recited. The eleventh section is excepted out of and
stands unaffected by the subsequent process acts, and is as
applicable in this case as it was to those where jurisdiction
depended on citizenship. It applies in its terms to all civil
suits; it makes no exception, nor can the courts of justice make
any.
The judicial power extends to all cases in law and equity
arising under the Constitution and laws of the United States, and
it is pursuant to this clause of the Constitution that the United
States courts are vested with power to execute the laws respecting
inventors and patented inventions; but where suits are to be
brought is left to the general law -- to-wit, to the eleventh
section of the Judiciary Act, which requires personal service of
process, within the district where the suit is brought, if the
defendant be an inhabitant of another state.
This case and that of
Day v. Hayward depend on the same
grounds of jurisdiction, and were both correctly decided in the
circuit court, and the judgment in each is
Affirmed.