United States v. American Lumber Co.

• Decision Date: 19 April 1897
• Docket Number: 12,162.
• Citation: 80 F. 309
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES v. AMERICAN LUMBER CO. et al.

80 F. 309

UNITED STATES v. AMERICAN LUMBER CO. et al.

No. 12,162.

United States Circuit Court, N.D. California.

April 19, 1897

Benj. F. Bergen, Special Asst. U.S. Atty.

Platt &amp Bayne and Butler, Notman, Joline & Mynderse, for defendant Central Trust Co.

Page McCutchen & Eells, for defendant American Lumber Co.

MORROW District Judge.

This case comes up on an exception taken by the defendants to the amended answer of the complainant filed by the latter to the defendants' plea in bar to the bill. The bill is filed to cancel, set aside, and have decreed null and void the patents issued by the United States to all the lands set forth and described in the bill. The plea sets up the statute of limitations as contained in an act of March 3, 1891 (26 Stat 1099), which provides that suits by the United States to annul and vacate any patent to timber land issued by the United States prior to the 3d day of March, 1891, shall only be brought within five years from the passage of said act and it furthermore sets up that the present suit was not brought within five years from the passage of the act. The act having been approved on March 3, 1891, the limitation of five years expired on March 3, 1896. The amended answer to the plea sets up that the bill was filed on February 3, 1896, and within five years from the passage of the act of congress of March 3, 1891, referred to. The defendants except to this answer as being impertinent. The bill itself was filed on February 3, 1896, and was therefore filed within the limitation of five years, which, as stated, did not expire until March 3, 1896; but the special order for extraterritorial service necessary to be obtained, under the provisions of section 8 of the act of March 3, 1875, reproduced as section 738 of the Revised Statutes, to serve absent or nonresident defendants, was not applied for until March 5, 1896, which date was then two days after the five-years limitation had expired. The question raised by the plea, and the pleadings relating thereto, is whether the suit was 'brought' when the bill was filed or when the special order for extraterritorial service of process was asked for and obtained. In order to understand intelligently the issue of law thus presented, it will be necessary to refer, briefly, to some of the allegations of the bill and the proceedings relating to the issuance of process against the defendants. It is alleged, in the bill, that 'the respondent the American Lumber Company is, and was at all the times hereinafter mentioned, a corporation created and organized under the laws of the state of Illinois, and that the respondent the Central Trust Company is, and was at all the times hereinafter mentioned, a corporation created and organized under the laws of the state of New York. ' The complainant, therefore, knew, when the bill was filed, that the defendants were nonresidents of and absent from this district. Indeed, any controversy on this point is removed by the affidavit of counsel for complainant, made on March 5, 1896, for the purpose of obtaining the special order for extraterritorial service. The defendants being, confessedly, nonresidents, the proper, and, in fact, the only, legal way, provided for by the laws of the United States, in which they could be served with process, and thereby effectually made parties to the suit brought against them in this district, was by obtaining the special order of service, sometimes termed the 'warning order,' required by section 8 of the act of March 3, 1875 (18 Stat. 472; Rev. St. Sec. 738). The material parts of this section in the act are as follows:

'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 said order, * * * it shall be lawful for the court to entertain jurisdiction and proceed to the hearing and adjudication of such suit,' etc.

As the suit in this case comes within the category of cases where extraterritorial service of process is permitted, and it appeared, from the allegations of the bill, that the defendants were absent from, and nonresidents of, this district, the process which the complainant should have obtained, in the first instance, was the special order of service required by the act, and not the ordinary subpoena in equity. However, before obtaining the special order of service referred to, the complainant caused certain subpoenas to be issued, the force and effect of which may as well be considered at the outset, before taking up the important question as to when suit must be deemed, in law, to have been 'brought.'

The proceedings, with reference to the issuance of the subpoenas, were substantially as follows: On February 3, 1896, the date of the filing of the bill, counsel for the complainant filed a praecipe with the clerk, requesting that official to issue two original subpoenas ad respondendum, returnable March 2, 1896, one to be served on the American Lumber Company, in Chicago, and the other on the Central Trust Company, in New York. These subpoenas were duly and regularly issued. None were issued and placed in the hands of the marshal for this district, such step being obviously useless, as it was known that the defendants were absent from, and nonresidents of, this district. The one directed to the Central Trust Company, in New York, was served, as appears from the return thereto, by the United States marshal for the Southern district of New York on February 11, 1896. That directed to the American Lumber Company, in Chicago, was not served, being returned 'Not found' by the United States marshal for the Northern district of Illinois. Thereupon the complainant caused an alias subpoena to be issued on February 18, 1896, which was served on February 24, 1896, as shown by the United States marshal for the Northern district of Illinois on his return thereto. This process, however, although it was served on the defendants before the statute of limitations ceased to run, was ineffectual for any purpose, and was absolutely void. In the first place, a subpoena has no effect or validity outside of the territorial jurisdiction of the court from which it emanates. This is in conformity to the cardinal principle of jurisprudence that the process of a court cannot extend beyond the territorial jurisdiction of the court, and that, unless expressly authorized by law, its process cannot be served outside of the territory over which it has jurisdiction. Picquet v. Swan, 5 Mason, 35, Fed. Cas. No. 11,134; Hyslop v. Hoppock, 5 Ben. 447, Fed. Cas. No. 6,988; Id., 5 Ben. 533, Fed. Cas. No. 6,989; Parsons v. Howard, 2 Woods, 1, Fed. Cas. No. 10,777; Pacific R.R. v. Missouri Pac. Ry. Co., 3 Fed. 772; U.S. v. Crawford, 47 F. 561; Russell v. Clarke, 7 Cranch. 69, 99; Toland v. Sprague, 12 Pet. 300; Levy v. Fitzpatrick, 15 Pet. 167; Herndon v. Ridgway, 17 How. 424; Chaffee v. Hayward, 20 How. 208; Galpin v. Page, 18 Wall. 350; Ober v. Gallagher, 93 U.S. 199; Ex parte Schollenberger, 96 U.S. 369. See, also, Romaine v. Insurance Co., 28 F. 625, and cases there cited.

In Pacific R.R. v. Missouri Pac. Ry. Co., supra, it was said:

'There is nothing in any statute of the United States that gives to the process of the circuit court of the United States, in a civil case, any power to bring a party within the jurisdiction of that court when he is not in and cannot be served within the limits of the territory.'

And after referring to the provisions of section 738 of the Revised Statutes (section 8, Act March 3, 1875), which provides for a special order of service upon absent or nonresident defendants in a certain class of cases, the learned judge says further:

'But this section does not authorize the issuance of the process, either of summons or subpoena in chancery, to be served beyond the limits of the jurisdiction of the court.'

In the second place, the only proper and legal method provided by the laws of the United States for the service of extraterritorial process, in a certain class of cases, upon absent or nonresident inhabitants, is by obtaining the special order of service, sometimes termed the 'warning order,' as required by section 8 of the act of March 3, 1875 (section 738, Rev. St.). That it is competent for congress to provide for extraterritorial service, so long as such service does not violate the constitutional guaranty of 'due process of law,' is well settled. U.S. v. Crawford, supra; U.S. v. Union Pac. R. Co., 98 U.S. 601. The special order of service, required to be obtained under the act referred to, is not a subpoena nor a summons. Its nature is thus described by the late Judge Gresham, sitting in the circuit court for the district of Indiana, in Forsyth v. Pierson, 9 Fed. 801, 803:

'This act provides that when any defendant in a suit in equity to enforce any equitable lien or

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