United States v. American Lumber Co.

• Decision Date: 07 February 1898
• Docket Number: 378.
• Citation: 85 F. 827
• Parties: UNITED STATES v. AMERICAN LUMBER CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

85 F. 827

UNITED STATES v. AMERICAN LUMBER CO. et al.

No. 378.

United States Court of Appeals, Ninth Circuit.

February 7, 1898

Benjamin F. Bergen, H. S. Foote, and Samuel Knight, for the United states.

Page McCutcheon & Fells, Swift, Campbell & Jones, Platt & Bayne and Butler, Notman, Joline & Mynderse, for appellees.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

Gilbert Circuit Judge.

The United States brought a suit in equity against the American Lumber Company and the Central Trust Company to declare null and void certain patents issued by the United States for lands in California, the title to which is vested in the American Lumber Company, subject to the lien of a trust deed to the Central Trust Company, securing bonds of the former company to the amount of $300,000. The defendants pleaded in bar of the suit that by an act of congress approved March 3 1891 (26 Stat. 1093, Sec. 8), it is provided that 'suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act,' and that the patents which it was the object of the suit to annul and vacate had been issued before the enactment of said statute, and that the suit had not been brought within five years from the passage of the act. The bill was filed on February 3, 1896, in the circuit court for the Northern district of California. It contained the allegation that the defendant the American Lumber Company is a corporation organized under the laws of the state of Illinois, and that the Central Trust Company is a corporation organized under the laws of the state of New York. On the day on which the bill was filed, two subpoenas bearing date February 3, 1896, were issued out of the clerk's office, upon a praecipe which reads as follows:

'To the Clerk of Said Court-- Sir: Please issue two originals and two copies of subpoena ad respondendum herein, for service upon respondents, returnable March 2, 1896; one original and copy being necessary for service upon, and for marshal to make return of service upon, the respondent American Lumber Co., in Chicago and the other original and copy of subpoena ad respondendum being necessary for marshal to serve upon, and to make return of service upon, the respondent Central Trust Co., in New York.'

Both of the subpoenas so issued were sent as soon as issued, the one to the United States marshal for the Northern district of Illinois, and the other to the United States marshal for the Southern district of New York. The marshal for the Northern district of Illinois returned the subpoena with the indorsement that the defendants were not found within his district. A subpoena was again issued February 18, 1896, and was sent to said marshal, and was thereafter returned with the indorsement that on February 24, 1896, it had been served upon the indorsement that on February 24, 1896, it had been served upon the secretary of the American Lumber Company, in that district. The marshal for the Southern district of New York served the subpoena on the Central Trust Company, in New York, on February 11, 1896. On March 5, 1896, and two days after the expiration of the five-years period of limitation for the commencement of the suit, an order was entered in the suit, reciting that it appeared from the affidavit of Benjamin F. Bergen, solicitor for the complainant, that the defendants were foreign corporations, having no officer or representative or agent, nor any office or place of business, within the state of California, and that the defendants could not be found in said state, and had not voluntarily appeared in the suit, and requiring them to appear on April 6, 1896. A copy of this order was served on the American Lumber Company March 9, 1896, and on the Central Trust Company March 16, 1896. On June 22, 1896, the service of this order was quashed upon the motion of the defendants; and on June 25, 1896, another order was thereupon entered, containing recitals similar to those of the first order, and directing the defendants to appear on August 3, 1896. It was upon the service of this last order that the defendants appeared and filed the pleas of the statute of limitations above set forth. Upon the hearing before the circuit court, the pleas were sustained, and the bill was dismissed. The case upon appeal to this court presents the single question whether or not, upon the record above set forth, the suit was begun within five years after March 3, 1891.

Was the suit begun on or before March 3, 1896. It is contended by the appellant that by filing the bill in equity and causing process to be issued thereon, for both the defendants, in good faith, before that date, it took all the steps necessary to bring or commence the suit before the expiration of the time limited by the act of congress. Just at what point of time a suit in equity may be said to have been begun under the practice of the federal courts has not been determined by any statute, or by any rule of court, or by any authoritative decision. A solution of the question must be found by reference to the English chancery practice, which has been made the rule of procedure in those courts.

The origin of the English chancery practice is involved in some obscurity, but from the earliest treatises upon the subject it appears that the jurisdiction of the court of chancery was invoked formerly, as now, by filing a petition or bill setting forth the complainant's grounds for relief, and praying that a writ of subpoena issue. Upon the petition so presented, the chancellor determined whether a cause was made for the issuance of the writ. He had the power to grant or to withhold the writ. If the writ was granted, the suit was begun; otherwise, there was no suit. The issuance of the writ was the commencement of the suit. In Harg. Law Tracts, 321 425, may be found treatises on the writ of subpoena, in which the suit in chancery is designated a suit by subpoena. In course of time the practice was modified so that the signature of counsel for the complainant was taken as sufficient authority for the issuance of the writ, and it was no longer necessary for the chancellor to pass upon the case made in the petition. It was held that the suit was pending from the teste of the subpoena. Pigott v. Nower, 3 Swanst. 534. Such, in brief, was the English chancery practice at the time of its adoption as the rule of procedure in the courts of the United States. And while it is true that, in cases where the suit was instituted on behalf of the crown, the matter of complaint was presented to the court by way of information instead of by petition or bill, it was only in form that the information differed from a bill; and it appears that from the filing of the information the subsequent procedure was substantially the same as in other suits. Mitf. Ch. Pl. 7, 22, 119; Attorney General v. Vernon, 1 Vern. 277, 370. The present suit on behalf of the United States might, no doubt, have followed the procedure of the English courts upon information (1 Barb.Ch.Prac. 34); but no warrant would be found from that fact for departing from the ordinary course of a suit in equity. Our equity rule No. 7 follows the English statute (4 Anne, c. 16, Sec. 22) in providing that 'no process of subpoena shall issue from the clerk's office in any suit in equity until the bill is filed in the office. ' Rule 5 provides that while all motions for the issuance of mesne process in the clerk's office shall be grantable, of course, by the clerk of the court, 'the same may be suspended or altered or rescinded by any judge of the court upon special cause shown. ' In the frame of the bill there is still inserted the prayer that the writ of subpoena may issue; but, under equity rule 24, signature of counsel is 'an affirmation, upon his part that, upon the instructions given to him and the case laid before him, there is good ground for the suit in the manner in which it is framed'; and it takes the place of an examination of the bill by the chancellor under the original practice. The writ of subpoena in the English chancery practice ran in the name of the king, and was returnable before the chancellor. Our writ is issued in the name of the president of the United States, and is...