VII. Laws of the States-Rules of Decision (Vol. 5, p. 1123). R. S. 721. Laws of the States, Rules of Decision (Vol. 5, p. 1123). VIII. Procedure, in General, 16. R. S. 911. Sealing and Testing of Writs, 16. R. S. 912. Teste of Process, Day of, 18. R. S. 913. R. S. 915. R. S. 916. R. S. 917. R. S. 918. R. S. 919. Mesne Process, and Proceedings in Equity and Admiralty, 18. Attachments, 64. Execution in Common-Law Causes, 70. Power of the Supreme Court to Regulate the Practice of Practice in the Several Courts to Be Regulated by Their Suits for Duties, Imposts, Taxes, Penalties, or Forfeitures,79. R. S. 921. Orders to Save Costs, and Consolidation of Causes of a Like Nature, 80. R. S. 922. When the Marshal or His Deputy Is a Party in a Cause, 81. R. S. 948. Amendment of Process, 90. R. S. 949. Priority of Cases in Which a State Is a Party, 92. R. S. 950. Notice of Case for Trial, 93. R. S. 953. Bill of Exceptions, 93. R. S. 954. Defects of Form - Amendments, 98. R. S. 955. Death of Parties, 111. R. S. 956. When One of Several Plaintiffs or Defendants Dies, 115. Unless, etc., 116. R. S. 959. Suits on Debentures Judgment at Return Term, Unless, R. S. 960. Suits on Bonds for Recovery of Duties - Judgment at R. S. 961. Judgment for Sum Due in Equity on Bonds, etc., 117. 119. R. S. 722. Proceedings, Civil and Criminal, in Vindication of Civil Rights, 120. R. S. 566. Trial of Issues of Fact, 121. R. S. 648. Issues of Fact, When to Be Tried by Jury, 124. R. S. 649. Issues of Fact Tried by the Court, 130. Act of Feb. 16, 1875, ch. 77, 130. Sec. 1. Findings of Facts and Law in Admiralty Cases Trial by Jury Review by Supreme Court, 130. Act of May 17, 1898, ch. 339, 135. Sec. 1. Jurisdiction of Circuit Court of Suit for Partition, Where 2. Procedure-Service of Process-Appearance - Plead Act of Feb. 11, 1903, ch. 544 (" Expediting Act"), 136. 2. Appeal Direct to Supreme Court, 138. -- R. S. 1031. When Peremptory Challenges Exceed the Number Allowed by Law, 139. IX. Procedure in Injunction Cases, 139. Act of Oct. 15, 1914, ch. 323 (" Clayton Act "), 139. Sec. 17. Preliminary Injunctions and Temporary Restraining 18. Restraining Orders, etc.- Security as Condition Pre- 19. Restraining Orders, etc.- Contents Binding Only upon Whom, 140. 20. Restraining Orders, etc.- When Not to Issue - What Acts Not to Be Prohibited, 141. X. Procedure for Contempt, 141. Act of Oct. 15, 1914, ch. 323, 141. Sec. 21. Contempt Constituting Criminal Offense under Federal or State Law, 141. 22. Procedure for Contempt - Rule to Show Cause - Trial and Judgment - Bail, 142. 23. Conviction of Contempt Reviewed on Writ of Error Stay and Bail, 142. 24. Certain Contempts Excluded from Operation of Act, 143. 25. One Year Limitation for Contempt Proceeding- No Bar to Criminal Prosecution Pending P roceedings, 143. 26. Effect of Partial Unconstitutionality of Act, 143. XI. Appellate Jurisdiction and Procedure, 143. ا Act of March 3, 1891, ch. 517, 143. - Sec. 4. Appeals from District and Circuit Courts, 143. Act of Jan. 28, 1915, ch. 22, 145. Sec. 2. Review by Circuit Court of Appeals of Decisions of Supreme 4. Finality of Judgments of Circuit Court of Appeals in Cases Act of Feb. 6, 1889, ch. 113, 146. Sec. 6. Writs of Error on Conviction of Crimes Punishable by Act of March 2, 1907, ch. 2564 (" Criminal Appeals Act "), 149. Act of Jan. 28, 1915, ch. 22, 152. - Sec. 6. Effect of Act Pending Cases-Criminal Appeals Act Act of April 7, 1874, ch. 80, 153. Sec. 2. Appellate Jurisdiction of Supreme Court of United States over Territorial Courts, How Exercised-Proceedings on appeal, 153. Act of March 3, 1891, ch. 517, 157. Sec. 6. Time Limit for Appeal or Writ of Error from Circuit R. S. 1008. Writs of Error and Appeals to Supreme Court, Time for Taking, 158. R. S. 1009. Appeals in Prize Causes, within What Time, 160, Act of March 3, 1891, ch. 517, 161. Sec. 11. Time Within Which Appeals, etc., to Circuit Courts of R. S. 997. Removal of Causes by Writ of Erroe, 163. R. S. 1012. Appeals to Supreme Court Subject to Same Rules, etc., as Act of March 3, 1891, ch. 517, 170. Sec. 11. Existing Provisions Relating to Appellate Procedure R. S. 698. Transcripts on Appeals, 174. R. S. 1013. Where Both Parties Appeal to the Supreme Court, One Act of Feb. 13, 1911, ch. 47, 180. 2. Sec. 1. Appeal, etc., to Circuit Courts of Appeals - Printed Transcript of Record to Be Filed - Original Documents, 180. Appeals, etc., to Supreme Court Use of Printed Record in Court Below as Part of Transcript Use of Uncertified Copies of Record - Clerk's Fee No Written Transcript of Printed Record Required, 182. R. S. 998. Citation, 183. R. S. 999. Citation, Supreme Court, 184, R. S. 1000. Bond in Error and on Appeal, 187. R. S. 1001. No Bond Required of United States, etc, 192. R. S. 1003. Writs of Error to State Courts, Manner of Issue, 194. R. S. 1004. Writs of Error Returnable to Supreme Court, How Issued, 194. R. S. 1005. Amendment of Writ of Error, 196. R. S. 1006. Amendments in Prize Appeals, 198. R. S. 1007. Supersedeas, 198. R. S. 700. Cases Tried by the Circuit Court without the Intervention of a Jury, 205. R. S. 701. Judgment or Decree on Review, 224. R. S. 1010. Damages and Costs on Affirmance in Error, 228. R. S. 1011. Reversal on Error Limited, 230. Act of March 3, 1891, ch. 517, 234. Sec. 10. Remand of Cases Reviewed by Supreme Court and by XII. Miscellaneous Provisions, 238. Act of Jan. 28, 1915, ch. 22, 238. Sec. 5. Action by or against Federal Railroad Company, Excluded from Federal Jurisdiction, 238. R. S. 852. Fees of Grand and Petit Jurors, 238. Act of June 21, 1902, ch. 1138, 239. Jurors' per Diem, 239. Act of May 27, 1908, ch. 200, 239. Sec. 1. Jurors and Witnesses - Fees and Mileage in Certain Act of March 4, 1911, ch. 237, 240. Sec. 1. Expenditures for Court of Customs Appeals to Be Submitted to Congress in Detailed Statement, 240. Act of March 4, 1911, ch. 285, 240. Sec. 1. Distribution of Supreme Court Reports to Circuit Courts of Appeals Libraries. 240. VIII. PROCEDURE, IN GENERAL Sec. 911. [Sealing and testing of writs.] All writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof. Those issuing from the Supreme Court or a circuit court shall bear teste of the Chief Justice of the United States, or, when that office is vacant, of the associate justice next in precedence, and those issuing from a district court shall bear teste of the judge, or, when that office is vacant, of the clerk thereof. The seals of said courts shall be provided at the expense of the United States. [R. S.] Act of May 8, 1792, ch. 36, 1 Stat. L. 275. Circuit" courts mentioned in this section were abolished by Judicial Code, § 289, supra, this title, vol. 5, p. 1082. Supreme Court Rule 5 requires that all process of the Supreme Court shall be in the name of the President of the United States. Effect of section. This section means no more than that when a writ or process issues from a federal court it must be signed by the clerk, and shall be authenticated in the manner therein set out. It is not an ordinance to the effect that no action or proceeding in a federal court shall be instituted except by the issue of process, signed by the clerk, duly sealed, etc. Leas. Merriman, (W. D. Va. 1904) 132 Fed. 510. Construed with R. S. sec. 914.- The provisions of this section are not inconsistent with, and therefore are not repealed by, the subsequent Act of Congress embodied in R. S. sec. 914, infra, p. 21. Giving due effect to the latter, the practice, and form and modes of proceeding, in the courts of the United States, in commonlaw actions, are to conform to, and be regulated by, those of the state courts, when there is no statute of the United States prescribing different practice or forms or modes of procedure. When the statutes of the United States are silent, the practice of the state courts will prevail, but when those statutes speak they are controlling. Peaslee v. Haberstro, (1879) 15 Blatchf. 472, 19 Fed. Cas. No. 10,884; Dwight v. Merritt, (S. D. N. Y. 1880) 4 Fed. 614. In any original suit in a federal court which must be commenced by a summons or other process of the court itself, such process must be signed by the clerk and issued under the seal of the court, to be valid, regardless of any different provision as to the form of a summons in the state courts, the general conformity statute not operating to waive this specific requirement as to the process in the federal courts embodied in this section. In re Condemnation Suits, (E. D. Tenn. 1916) 234 Fed. 443. Other than in the necessary particulars prescribed by this section and R. S. sec. 912, infra, neither the form of the writ or process, nor its contents, nor the manner or method of its delivery to the marshal for service, nor its formal drafting, is sought to be controlled by any legislation of Congress, further than to ordain generally that the writ shall, as to these particulars, so far as possible, harmonize with and be similar to the writs and processes obtaining under the code of procedure of the state in which the court has jurisdiction. Jewett v. Garrett, (C. C. N. J. 1891) 47 Fed. 625. The forms of process for the commencement of suits are provided for under the provision of R. S. sec. 914, infra, p. 21, except as to signature, which is provided for by this section. Gillum v. Stewart, (N. D. Tex. 1901) 112 Fed. 30. See also Shepard v. Adams, (1898) 168 U. S. 618, 18 S. Ct. 214, 42 U. S. (L. ed.) 602; Peaslee v. Haberstro, (1879) 15 Blatchf. 472, 19 Fed. Cas. No. 10,884; Dwight v. Merritt, (S. D. N. Y. 1880) 4 Fed. 614, as to signature by plaintiff's attorney; Brown v. Pond, (S. D. N. Y. 18803 5 Fed. 31; Chamberlain v. Mensing, (C. C. S. C. 1891) 47 Fed 435. Process defined. The word "process," as used in this section, means an order of court, although it may be issued by the clerk. Least. Merriman, (W. D. Va. 1904) 132 Fed. 510. Processes of the court, in its narrowest sense, and as used in this section, means the writs and mandates of the court, under the seal thereof. U. S. v. Murphy, (D. C. Del. 1897) 82 Fed. 893. Preparation of process.-Any suitor or duly authorized attorney may draft the process or writ. Jewett v. Garrett, (C. C. N. J. 1891) 47 Fed. 627. Signed by the clerk.-A summons will be set aside when not signed by the clerk. If the summons had been signed by the clerk, it could be amended as regards the seal. Peaslee v. Haberstro, (1879) 15 Blatchf. 472, 19 Fed. Cas. No. 10,884. See also Bowler t. Eldredge, (1846) 18 Conn. 1. By a deputy clerk.- The signing of a venditioni exponas by a deputy clerk in his own name, and the want of the signature of the clerk himself, was held to be an irregularity only, and not to avoid the writ and proceedings under it. Griswold v. Connolly, (1871) 1 Woods 193, 11 Fed. Cas. No. 5,833. See also Bragg v. Lorio, (1871) 1 Woods 209, 4 Fed. Cas. No. 1,800. Teste of writ.-On all process and writs from the Supreme Court, including writs of error, the statute makes teste of the chief justice indispensable. Wells v. McGregor, (1872) 13 Wall. 188, 20 U. S. (L. ed.) 538; Middleton Paper Co. v. Rock River Paper Co., (W. D. Wis. 1884) 19 Fed. 252. A a District issued from summons Court, bearing the teste of the chief justice instead of that of the district judge, is irregular in that particular, but may be amended under the provisions of R. S. sec. 954, infra, p. 98. U. S. v. Turner, (D. C. S. C. 1892) 50 Fed. 734. The teste of a writ from the former Circuit Court by a deputy clerk was not a compliance with the statute. U. S. v. Antz, (E. D. La. 1883) 16 Fed. 119. Vacancy in office of judge.-All writs and processes issuing from a District Court when the office of its judge is vacant shall be tested in the name of its clerk. In re Urban, etc., Realty Title Co., (D. C. N. J. 1904) 132 Fed. 140. Power to amend process.- Power to amend process is given by R. S. secs. 948 and 954, infra, pp. 90, 98. That power is power to amend a want of form in amend a process, but not to paper. void for want of compliance with the statute. Dwight v. Merritt, (S. D. N. Y. 1880) 4 Fed. 614, wherein it appeared that an attempt was made to commence a suit at common law, by serving on the defendant a paper purporting to be a summons, in the form prescribed by the statute of New York for commencing a civil action. It was signed by the plaintiff's attorney, but was not under the seal of the court nor was it signed by the clerk of the court. On motion of the defendant to set aside the summons because of these defects, the plaintiff asked to be allowed to amend the summons, nunc pro tunc, by having the seal and signature added. Denying the motion to amend, and setting aside the summons, the court said: 'Power to amend the process is said to be given by sections 048 and 954. That power is to power mend a defect in process, and power to amend a want of form in process. But there must first be a process to be amended. There must be something to amend and to amend by. This paper is no process. The process which can be amended under the power conferred, is process issuing from the court. VOL. VI-2 This paper never issued from the court. If it had in fact issued from the court and was signed by the clerk, but had no seal, or had a seal but was unsigned, what it had might perhaps be accepted as showing that it issued from the court, and the lacking particular might be supplied." In U. S. v. Turner, (D. C. S. C. 1892) 50 Fed. 734, the original summons issuing out of the District Court bore the teste of the chief justice, and not of the district judge. The court held that this was a defect or irregularity subject to amendment. As the summons bore the seal of the District Court and issued from the court there was something to amend and to amend by. When a seal has been omitted from a writ of error, it may be amended. Wolf v. Cook, (E. D. Wis. 1889) 40 Fed. 432, citing Semmes v. U. S., (1875) 91 U. S. 21, 23 U. S. (L. ed.) 193. v. Likewise a summons duly signed by the clerk can be amended as regards the seal. See Peaslee Haberstro, (1879) 15 Blatchf. 472, 19 Fed. Cas. No. 10,884. Delivery of process for service.Nowhere is it required by statute of the United States that the clerk shall deliver the writ or process to the marshal for service, and, when the clerk has performed all of the acts prescribed by Congress for the issuing of writs and processes, the writ or process, as the case may be, is clearly issued by him. Perris Irrigation Dist. v. Turnbull, (C. C. A. 9th Cir. 1914) 215 Fed. 562, 132 C. C. A. 74, following Leas v. Merriman, (W. D. Va. 1904) 132 Fed. 510; Jewett v. Garrett, (C. C. N. J. 1891) 47 Fed. 625. But in some districts it seems to have been for many years a settled practice after writ and process has issued in obedience to this section, for the clerk to prepare the requisite number of copies thereof, attesting the same as true copies of the original writ and process, and to deliver them to the marshal or his deputy for service. The officer, having made service of such true and attested copies, makes indorsement to that effect upon the original. Elson r. Waterford, (C. C. Conn. 1905) 135 Fed. 247. Copy of writ.-As the original writ must be issued under the seal of the court, a copy of it, of course, can only be certified by the clerk, who is custodian of the seal, who alone can issue the writ, and who has charge of and makes the record authorizing its issuance. Taylor v. U. S., (E. D. Tenn. 1891) 45 Fed. 531, reversed (1893) 147 U. S. 695, 13 S. Ct. 479, 37 U. S. (L. ed.) 335. Process subject to requirements of section - In general. The provisions of this section apply only to writs and processes issuing from the courts themselves. In re Condemnation Suits, (E. D. Tenn. 1916) 234 Fed. 443. |