Batt v. Procter

Decision Date20 March 1891
Citation45 F. 515
PartiesBATT v. PROCTER et al.
CourtU.S. District Court — Western District of Texas

S. M Ellis and James Raley, for plaintiff.

MAXEY J.

The plaintiff makes application, upon oath of his solicitor, to the court in session at Austin for an order of service by publication as to all defendants in the suit who are averred in the application to be non-residents of this state. The amended bill of complaint, as against several of the defendants, prays for an accounting and a reconveyance of certain lands therein specified. A number of the defendants are alleged in the amended bill to be residents of the state of Texas. According to the allegations of the amended bill the defendants Martha A. Adams, Martha J. Adams, Dora B Adams, reside in Cayuga county, N.Y.; Ex. Stockdale, Logan county, Ky.; Nancy B. Stockdale in Virginia; Ex. Norton city, county, and state of New York; W. L. Clark, Frederick county, Va.; Cynthia T. B. Holman, Charles A. Holman, James City county, Va.; Dr. B. St. George Tucker, El Paso county, Colo.; Mrs. Blood Taliaferro, James City county, Va.; N. Beverly Tucker, Rockbridge county, Va.; William P. Tucker, Albemarle county, Va.; Mrs. Julia Tucker and Virginia Tucker, Buchanan county, Mo. Touching the residence of defendants John A. Hall, James Caskie, G. Evans, Eliza H. R. Buford, Thomas Seddon, J. A. Seddon, W. C. Seddon, A. M. Seddon, Rosa I. Rutherford, Z. W. Pickerel, J. P. Branch, and Thomas Green, it is alleged as follows: 'The last twelve defendants being, as complainant is informed and believes, residents of the state of Virginia, but of what county or city complainant says he is in ignorance, and that he has been unable to ascertain the same after diligent inquiry. ' The application for the order is sworn to by Mr. Ellis, who deposes:

'That none of the aforesaid defendants (referring to non-residents named in the application, but whose residences are not given) can be personally served with a subpoena from the office of the clerk of this court by the marshal of the western district of Texas, and none of said defendants have voluntarily appeared to this cause. And complainant therefore prays that, owing to the large number of defendants, and to the fact that the exact residence of many of the defendants is unknown, and cannot, with reasonable diligence, be learned, and the great cost of obtaining personal service upon those whose residences are known, * * * an order * * * that the said defendants be summoned to answer, * * * and that such service be made by publication,' etc.

The affiant in the application fails to name the state or county in which any one of the non-residents resides, and simply states generally they are non-residents of the state of Texas. The application is based upon the eighth section of the act of March 3, 1875, (18 St.at Large, 470,) which is not repealed by the act of August 13, 1888, (25 St.at Large, p. 436, § 5.) So much of the eighth section of that act as it is deemed material to consider is in the following language:

'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; * * * 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, * * * and upon proof of the service or publication of
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5 cases
  • Becker v. Hopper
    • United States
    • United States State Supreme Court of Wyoming
    • January 27, 1914
    ...... 134 N.W. 809; Grigsby v. Wopschall, (S. D.) 127 N.W. 605; Millage v. Richards, (Colo.) 122 P. 788;. McDonald v. Cooper, 32 F. 745; Batt v. Proctor, 45 F. 515; Swain v. Chase, 12 Cal. 283; Beach v. Beach, (Dak.) 43 N.W. 701; Est. Malaer v. Damron, 31 Ill.App. 572; Mackubin ......
  • Vidal v. South American Securities Co., 69.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 15, 1921
    ...or business should be strictly construed and not enlarged by liberal construction. Woolridge v. McKenna (C.C.) 8 Fed. 650; Batt v. Proctor (C.C.) 45 F. 515; Non-Magnetic Watch Co. v. Association Horlogere Swisse Geneve (C.C.) 44 F. 6. In Consolidated Interstate Callahan Mining Co. v. Callah......
  • United States v. American Lumber Co.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • April 19, 1897
    ...for the special order of service. This was discussed generally in the case of Forsyth v. Pierson, supra. And in the case of Batt v. Procter, 45 F. 515, it was held that issuance of a subpoena and return 'Not found' were not prerequisites to the making of the application and granting of the ......
  • Hicks v. Crawford Coal & Iron Co.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • April 29, 1911
    ...... be entirely practicable to serve such order upon them at. their places of residence in other districts. See Batt v. Proctor (C.C.) 45 F. 515, and In re Burka. (D.C.) 107 F. 674. In the first-named case it is said. that in order to warrant an order of ......
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