Martin v. Burford
| Decision Date | 07 February 1910 |
| Docket Number | 1,712. |
| Parties | MARTIN v. BURFORD et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
E. M Barnes, for plaintiff in error.
Winn & Burton and Hellenthal & Hellenthal, for defendants in error.
Before GILBERT and MORROW, Circuit Judges, and HUNT, District Judge.
The defendants in error have appeared specially and interposed a motion to dismiss the appeal on the ground that the court has no jurisdiction to entertain the appeal, and on the further ground that the court is without jurisdiction of the persons of the defendants in error George C. Burford, Jules B. Caro and Charles E. Hooker, or the partnership doing business under the firm name and style of J. B. Caro & Co., for the reason that the citation issued there was never served on George C. Burford, or Jules B. Caro, or Charles E. Hooker, or the partnership of J. B. Caro & Co. The plaintiff in error was the plaintiff in the court below, and the judgment appealed from was in favor of all the defendants in error. We assume that the motion was intended to be a motion to dismiss the writ of error, and will treat it as such. The writ of error was sued out in due time after the entry of the judgment, and was returned and docketed in this court together with an authenticated transcript of the record and the assignment of errors, with the prayer for reversal of the judgment, as provided by law.
The court has therefore acquired jurisdiction of the case upon the writ of error, and the motion to dismiss the writ of error must be denied.
Whether the court has obtained jurisdiction of the defendants in error by the serving of the citation is another question. It appears from the evidence of service that the citation was not served upon the attorneys for the defendants in error nor upon George C. Burford, one of the defendants in error; that service was made upon the partnership of J. B. Caro & Co. by depositing a copy of the citation in the post office at Juneau, Alaska, postage prepaid, addressed to 'J. B. Caro & Co., Juneau, Alaska'; and that no service of any kind was made upon Charles E. Hooker and J. B. Caro, the individual members of the partnership of J. B. Caro & Co. Service by mail was insufficient. Tripp v. Santa Rosa Street R. Co., 144 U.S. 126, 129, 12 Sup.Ct. 655, 36 L.Ed. 371. The citation should have been served upon the attorneys of record (Bacon v. Hart, 66 U.S. 38, 17 L.Ed. 52; Bigler v. Waller, 79 U.S. 142, 147, 20 L.Ed. 260), or upon all the parties in whose favor the judgment was...
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