United States v. Van Dusen
| Decision Date | 29 May 1935 |
| Docket Number | No. 10176.,10176. |
| Citation | 78 F.2d 121 |
| Parties | UNITED STATES v. VAN DUSEN. |
| Court | U.S. Court of Appeals — Eighth Circuit |
E. H. Horton, Sp. Asst. to Atty. Gen. (Frank J. Wideman, Asst. Atty. Gen., Sewall Key and A. F. Prescott, Sp. Assts. to Atty. Gen., and George F. Sullivan, U. S. Atty., and Linus J. Hammond, Asst. U. S. Atty., both of St. Paul, Minn., on the brief), for the United States.
Hayner N. Larson, of Minneapolis, Minn. (J. B. Faegre and Cobb, Hoke, Benson, Krause & Faegre, all of Minneapolis, Minn., on the brief), for appellee.
Before GARDNER, SANBORN, and FARIS, Circuit Judges.
On March 27, 1934, a summons was issued out of the United States District Court for the District of Minnesota, reading as follows:
On May 23, 1934, the United States marshal, to whom the summons was directed, filed the following return: "I hereby certify and return, that I received the within writ on the 27th day of March, 1934, and personally served the same on the 21st day of May, 1934, on Myra C. Van Dusen by delivering to and leaving with May Stav, house-maid, an adult person, who is a member or resident in the family of Myra C. Van Dusen said defendant named therein, at the Residence, Zumbro Heights, County of Hennepin in said District, an attested copy thereof, at the dwelling house or usual place of abode of said Myra C. Van Dusen, one of said defendants herein."
The defendant (appellee here), appearing specially, moved the court to quash the summons and to set aside the service thereof "by reason of the fact that said summons is not in substantial compliance with the requirements of Mason's Minnesota Statutes 1927, section 9225, and for that reason is invalid and of no effect." The court granted this motion. From the order quashing the summons, the plaintiff has appealed.
The record does not show that the complaint was served with the summons, nor does it show that the plaintiff applied to the court for leave to amend the summons. The plaintiff in its brief states that the defendant received the complaint with the summons; and that may also be inferred from the opinion of the court, which is in the record. From the oral argument and briefs, we understand that the plaintiff applied to the court below for permission to amend. The court expressed the opinion that the summons was fatally defective.
The question before us is whether, upon the record presented, the court erred in making the order which was made. An appellate court must be controlled in its decision solely by the facts contained in the record. It may not have recourse to other facts stated by counsel in oral argument or contained in their briefs, unless they are matters of which the court might properly take judicial notice. Leonard v. Field (C. C. A. 9) 71 F.(2d) 483, 487; Virginia Beach Bus Line v. Campbell (C. C. A. 4) 73 F.(2d) 97, 101. Nor can the court resort to the opinion of the trial court to ascertain the facts. Townsend v. Beatrice Cemetery Ass'n (C. C. A. 8) 138 F. 381; Clark v. Milens (C. C. A. 9) 32 F. (2d) 1004; Rickard v. Thompson (C. C. A. 9) 72 F.(2d) 807, 810. In other words, deficiencies in the record may not be supplied by stipulations or statements of counsel or recitals in the opinion of the court from which the appeal is taken. "Whatever the error may be, and in whatever stage of the cause it may have occurred, it must appear in the record, else it cannot be revised in a court of error exercising jurisdiction according to the course of the common law." Suydam v. Williamson et al., 20 How. 427, 433, 15 L. Ed. 978; Becker v. Evens & Howard Sewer Pipe Co. (C. C. A. 8) 70 F.(2d) 596; McCuing v. Bovay (C. C. A. 8) 60 F.(2d) 375. Any decision which we reach, therefore, must be based upon the record before us, which contains the summons, the complaint, the return of the marshal, the motion to quash, and the order appealed from.
The Federal District Courts have power to issue all writs necessary for the exercise of their respective jurisdictions. Section 377, title 28, U. S. C. (28 USCA § 377). Such writs are to be under the seal of the court and signed by the clerk. Section 721, title 28, U. S. C. (28 USCA § 721). The practice, pleadings, and forms and modes of proceeding in civil causes (except equity and admiralty causes) shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding in like causes in the courts of record of the state within which the Federal District Court is held. Section 724, title 28, U. S. C. (28 USCA § 724). Congress has granted to the Federal District Courts abundant power to amend their process (section 767, title 28, U. S. C. 28 USCA § 767), and has provided that no summons in a civil action shall be quashed for any defect or want of form, but that such defects shall be amended. Section 777, title 28, U. S. C. (28 USCA § 777).
When the summons here in question was issued, section 9225, Mason's Minnesota Statutes 1927, provided:
Rule 3 of the Rules of the United States District Court for the District of Minnesota provided:
This rule of court and the state statute referred to clearly called for a summons directed to the defendant, requiring her to answer the complaint within 20 days from the day of service, and notifying her that if she failed to answer, the plaintiff would take judgment against her for the amount specified in the complaint (the action being one for a liquidated money demand).
The summons which the defendant received from the marshal was not directed to her, but was a writ directed to the marshal requiring him to summon her to appear and to answer. It contained no notice to her as to what consequence would follow upon her failure to answer. It was not in conformity with the state practice or with the federal practice in the District of Minnesota.
The plaintiff contends that the defects in the summons are merely formal and should have been disregarded by the court or amended by it as of course. We find no cases, either state or federal, directly in point. Ammons v. Brunswick-Balke-Collender Co. (C. C. A. 8) 141 F. 570, is perhaps the nearest approach. In that case this court regarded a failure to state in the summons the consequence of default, as a formal defect. The applicable Arkansas statute, however, did not expressly provide for notice to the...
To continue reading
Request your trial
-
McCaw v. Fase
...of Civil Procedure, 28 U.S.C., applies with great strictness. Rickard v. Thompson, 9 Cir., 1934, 72 F.2d 807, 809; United States v. Van Dusen, 8 Cir., 1935, 78 F.2d 121, 122; Gallagher's Steakhouse v. Bowles, 2 Cir., 1944, 142 F.2d 530, 531. However, in reality, the appellants are contendin......
-
Smith v. Baule
...course described as one of extreme liberality in allowing amendments where no hardship results and no injustice is done. United States v. Van Dusen, 78 F.2d 121 (8 Cir.). Examples are Hirsch v. Bruchhausen, 284 F.2d 783 (2 Cir.) (amendment to allow partners substituted for corporation); Gra......
-
BROTHERHOOD OF LOC. FIRE. & ENG. v. Northern Pac. Ry. Co.
...we make no point of it here. Henneford v. Northern Pacific Railway Co., 303 U.S. 17, 19, 58 S.Ct. 415, 82 L.Ed. 619; United States v. Van Dusen, 8 Cir., 78 F.2d 121, 122; Drake v. General Finance Corporation of Louisiana, Inc., 5 Cir., 119 F.2d 588, 589, 590; 3 Am.Jur., Appeal and Error, Se......
-
United States v. French
...the method of bringing actions and the forms of summons. Shepard v. Adams, 168 U.S. 618, 18 S.Ct. 214, 42 L.Ed. 602; United States v. Van Dusen, 8 Cir., 78 F.2d 121. The pertinent Iowa statutes are sections 11012 and 11055, Code of Iowa, 1927. Section 11012 deals with "Commencement of actio......