Shepard v. Adams
Citation | 18 S.Ct. 214,168 U.S. 618,42 L.Ed. 602 |
Decision Date | 03 January 1898 |
Docket Number | No. 134,134 |
Parties | SHEPARD v. ADAMS |
Court | U.S. Supreme Court |
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 10 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 40 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 10 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:
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 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:
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:
T. J. O'Donnell, for plaintiff in error.
C. S. Thomas and W. H. Bryant, for defendant in error.
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, 16 Sup. Ct. 490, 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 the court was wrong in so deciding, it was...
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