Edwin Chaffee, Trustee of Horace Day, Plaintiff In Error v. Nathaniel Hayward Horace Day, Plaintiff In Error v. Nathaniel Hayward

Citation15 L.Ed. 851,20 How. 208,15 L.Ed. 804,61 U.S. 208
PartiesEDWIN M. CHAFFEE, TRUSTEE OF HORACE H. DAY, PLAINTIFF IN ERROR, v. NATHANIEL HAYWARD. HORACE H. DAY, PLAINTIFF IN ERROR, v. NATHANIEL HAYWARD
Decision Date01 December 1857
CourtUnited States Supreme Court

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 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 et al. v. McLean et al., 13 How., 150. And these cases have been recognised and affirmed in the case of Carroll et al. v. Dorsey et al., 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.

HAYWARD.

No. 52.

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.

When the case came up for argument, it was submitted on printed argument by Mr. Jenckes for the plaintiff in error, and argued orally by Mr. Bradley and Mr. Pitman for the defendant.

Mr. Jenckes made the following points:

Point I. The Circuit Court for the district of Rhode Island, having jurisdiction of the subject-matter, may issue its process in the same form, and the process itself may be served in the same manner, as process issuing from the Supreme Court of that State for any cause of action within its common-law jurisdiction. (Process Act of May 8th, 1792, sec. 2, Stat. at L., I, 276.)

If the service was good by the laws of that State as they were at the date of the passage of the process act, then it is good under the laws of the United States.

1. The form of the writs in these cases and the modes of proceedings to bring the defendant before the court, were strictly in accordance with the law of Rhode Island. (Public Laws of Rhode Island, Digest of 1844, pp. 110, 113, 115.)

The statute law of Rhode Island regulating attachments on original writ was the same in 1789 as in 1855. (See Digest of 1767, p. 12; Digest of 1798, p. 201.) In all the statutes authorizing attachments of personal property, the same provision is found which is contained in the Digest of 1844, p. 113, sec. 3: 'When any attachment is made in manner aforesaid, the same shall be sufficient to bring the cause to trial.' Neither in the case of attachment of personal property, nor of real estate, (p. 115, sec. 11,) is there any provision made for personal service on the defendant. In the case of personal estate, a copy of the writ must be left at the defendant's usual place of abode, (p. 113, sec. 3,) and, in the case of real estate, with the person in possession of the land, and with the clerk of the town where the land lies, (p. 115, sec. 11.) Such service (sec. 3, p. 113) is expressly declared sufficient to bring the cause to trial. In case of real estate, the execution runs against the property attached, (sec. 11, p. 115.)

2. The above-cited statutes of Rhode Island show that the service of the process in a case in the Supreme Court of that State, made in the same manner as in this case, would have been sufficient to compel the attendance of the defendant, for the purpose of giving that court jurisdiction of the cause, and to form the basis of a judgment by default in case of his non-appearance.

Point II. The eleventh section of the judiciary act of 1789 does not prohibit the taking of jurisdiction over this cause.

The provisions of that section apply to the cases of jurisdiction founded on the citizenship of the parties. There is no reference in that section to suits at common law in which the Circuit Courts have jurisdiction over the parties by reason of their exclusive jurisdiction over the subject-matter. Most of the cases decided under that statute were cases where the jurisdiction depended solely on the citizenship of the parties, and were within the letter of the prohibition. (Picquet v. Swan, 5 Mason, 561; Richmond v. Dreyfous, 1 Sumner, 131; Toland v. Sprague, 12 Peters, 300.)

The case of Day v. The Newark India Rubber Manufacturing Company, 1 Blatchford, 628, was rightly decided, inasmuch as the mode of proceeding adopted in the commencement of that suit had not been adopted by the Circuit Court in New York; and it is submitted that it was not necessary to construe the eleventh section of the judiciary act as extending to a class of cases not referred to in that statute, and in which the jurisdiction does not depend on citizenship.

It is submitted that the Circuit Court in Rhode Island takes jurisdiction of cases under the patent laws, in the same manner that the Supreme Court of that State takes jurisdiction of any transitory action, and may use the same...

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    ...or in which he was found at the time of serving the writ. That section applied to suits for patent infringement. Chaffee v. Hayward, 20 How. 208, 216, 15 L. Ed. 804, 851; Allen v. Blunt, Fed.Cas. No.215, 1 Blatchf. 480. The Act of March 3, 1875, c. 137, 18 Stat. 470, retained the provision ......
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