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served. So, it has been held: That, under a bill to reform an insurance policy pending an action at law upon the policy, a subpoena may be thus served upon the attorney for the party to the action at law. That under a bill to enjoin the prosecution of a suit to compel the transfer of stock, a subpœna may be served upon the attorney for the plaintiff in the former suit.10 And that under a bill to collect out of equitable assets a decree of the same court of equity for costs, such service of a notice without a subpoena is sufficient.11 The Federal courts have refused to extend this class of cases so as to include a bill of interpleader, two of the defendants to which were engaged in an action between themselves in the same court concerning the same matter,12 although in England such a mode of service. might have been allowed.13

Nor, it seems, can a subpoena thus be served under a bill to set aside a sale made under a decree of the same court to which persons are joined as defendants who were not parties to the former suit.14

Substituted service of a subpoena to appear and answer to a cross-bill has been allowed,15 but not when the cross-bill sought to introduce new and distinct matters into original suit.16 The safer practice when a defendant to a cross-bill can

8 G. & C. Merriam Co. v. Saalfield, 241 U. S. 22.

9 Abraham v. North German Fire Ins. Co., 3 L.R.A. 188, 37 Fed. 731. 10 Kelley v. T. L. Smith Co., C. C. A., 196 Fed. 466.

11 Maitland v. Gibson, 79 Fed.

136.

12 Herndon v. Ridgway, 17 How. 424, 15 L. ed. 100. See § 157. Ves. & B. 407. See § 157.

13 Martinius v. Helmuth, G. Cooper, 248; Stevenson v. Anderson, 2 Ves. & B. 407. See § 157.

14 Pacific R. Co. of Mo. v. Mo. Pac. Ry. Co., 3 Fed. 772; s. c., on appeal, 111 U. S. 505, 522, 28 L. ed. 498, 504.

15 Johnson R. R. S. Co. v. Union S. & S. Co., 43 Fed. 331, § 201;

Kingsbury v. Buckner, 134 U. S. 650, 676, 33 L. ed. 1047, 1057; Lowenstein v. Glidewell, 5 Dill. 325; Sawyer v. Gill, 3 Woodb. & M. 97; Segee v. Thomas, 3 Blatchf. 11; Hitner v. Suckley, 2 Wash. 465; Anderson v. Lewis, 3 Brown Ch. C. 429: Gardiner v. Mason, 4 Brown Ch. C. 478; Waterton v. Croft, 5 Simons, 502; infra, § 201.

16 Rubber Co. v. Goodyear, 9 Wall. 307; Heath v. Erie Ry. Co., 9 Blatchf. 316; Lowenstein v. Glidewell, 5 Dillon 325; Ledbetter v. Mandell, 141 App. Div. (N. Y.) 556, aff'd 205 N. Y. 537. But see Kingsbury v. Buckner, 134 U. S. 650, 676, 33 L. ed. 1047, 1057. See infra, $201.

not be served personally seems to be to procure an order staying his proceedings in the original cause until he answers the crossbill.17 Substituted service of process or notice upon a petition of intervention is allowed in the same cases in which it would be allowed upon a cross-bill.18 Substituted service has also been allowed in England upon the agent of a defendant beyond the jurisdiction, who had authority to represent the latter with respect to the property which was the subject of the suit.19 When substituted service is wished, an order must be obtained that service upon the attorney employed in the former suit or action shall be deemed good service.20 If service be made upon the attorney without such an order having been obtained, it may be set aside,21 and all subsequent proceedings will be void.22 The motion for such an order ordinarily may be ex parte. 23 It must be supported by an affidavit, made by the plaintiff or by some person having personal knowledge of the facts therein stated, setting forth the reasons why such service is necessary and verifying the allegations of the bill.24 Written admissions of the defendant may, however, be sufficient to support the motion without such affidavit.25 A previous request of the attorney and his refusal to accept service of the subpoena are not a necessary preliminary to such a motion.26 Where the bill is demurrable for want of equity, the motion for substituted serv

17 Sawyer v. Gill, 3 W. & M. 97; Segee v. Thomas, 3 Blatchf. 11; Hitner v. Suckley, 2 Wash. 465; Anderson v. Lewis, 3 Brown Ch. C. 429; Gardiner v. Mason, 4 Brown Ch. C. 478; Watertown v. Croft, 5 Simons, 502.

18 Fidelity T. & S. D. Co. v. Mobile St. Ry. Co., 53 Fed. 850; infra, § 259.

19 Hobhouse v. Courtney, 12 Sim. 140; Fidelity T. & S. D. Co. v. Mobile St. Ry. Co., 53 Fed. 850; Gasquet v. Fidelity T. & S. V. Co., C. C. A., 57 Fed. 80; Gregory v. Pike, 79 Fed. 520.

20 Pacific Ry. Co. of Mo. v. Mo. Pac. Ry. Co., 3 Fed. 772; s. c., 1

McCary, 647; Daniell's Ch. Pr. (2d
Am. ed.) 502.

21 Ibid. Johnston-Brown Co. V. Dela. L. & W. R. Co., 239 Fed. 590. 22 Gregory v. Pike, 79 Fed. 520. 23 Daniell's Ch. Pr. (2d Am. ed.) 502. But see Crew v. Martin, 1 Fowler Ex. Pr. 225.

24 Pacific Ry. Co. of Mo. v. Mo. Pac. Ry. Co., 3 Fed. 772; s. c., 1 McCrary, 647; Delancy v. Wallis, 3 Brown's C. C. 12; Stephen v. Cini, 4 Ves. 359; Kenworthy v. Accunor, 3 Madd. 550.

25 Royal Exch. Ins. Co. v. Ward, 1 Fowler Ex. Pr. 225.

26 French v. Roe, 13 Ves. 593.

ice may be denied.27 Where the order has been improvidently made, it may be set aside on motion at the same term.2 28

§ 165a. Service in suits where receivers have been appointed. Where in a suit in which a receiver has been appointed, land or other property of a fixed character which is the subject of the suit lies within different states in the same circuit, and the appointment of the receiver is not disapproved by the Circuit Court of Appeals or Circuit Judge, the Judicial Code provides: "Process may issue and be executed within any district and circuit in the same manner and to the same extent as if the property were wholly within the same district; but orders affecting such property shall be entered of record in each district in which the property affected may lie or be."1 It has been held that this authorizes process in a suit brought by the receiver to protect the property in one district to be served in any district in the State.2 Such service was upheld in a suit by a receiver of a natural gas company to enjoin State officers and commissions in different States from enforcing orders regulating price of gas.3

§ 166. Statutory service of a subpoena. The statutes of the United States, which in this respect are analogous to those of England,' provide; "That when in any suit, commenced in any district 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, whenever found, and also upon the person or persons in

27 Muhlenburg County v. Citizens' Nat. Bank, 65 Fed. 537.

28 Fidelity T. & S. D. Co. v. Mobile St. Ry. Co., 53 Fed. 850.

$ 165a. 1 Jud. Code § 56, 36 St. at L. ch. 231, p. 1102, Comp. St. § 1038. See supra, §§ 61, 64.

2 Landon v. Public Utilities Commission, 234 Fed. 152, 157.

3 Ibid.

§ 166. 12 Wm. IV, ch. 33; 4 &

5 Wm. IV, ch. 82.

possession or charge of said property, if any there be; 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. In case such absent defendant shall not appear, plead, answer, or demur within the time so limited, or within some further time to be allowed by the court, in its discretion, and upon proof of the service or publication of said. order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district; and when a when a part of the said real or personal property against which such proceedings shall be taken shall be within another district, but within the same State said suit may be brought in either district in said State: Provided, however, That any defendant or defendants not actually personally notified as above provided may, at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said Circuit court, and thereupon the said court shall make an order setting aside the judgment therein permitting said defendant or defendants to plead therein on payment by him or them of such costs as the courts shall deem just; and according to law. It seems that this statute applies to the District Court for Porto Rico in a case where the same has general jurisdiction.3

2

The statute applies, although there is but one defendant.4

2 Jud. Code, § 57, 36 St. at L. 1087. A similar method of service is authorized in bankruptcy, in case personal service cannot be made. 30 St. at L., § 18, pp. 544, 551; infra, § 97. All statutes which authorize proceedings against absent defendants and unknown heirs upon serv

ice by publication must be strictly followed. Hunt v. Wickliffe, 2 Pet. 201; Boswell v. Otis, 9 How. 336. 13 L. ed. 164.

3 Perez v. Fernandez, 220 U. S. 224, 55 L. ed. 443.

4 Ames v. Holderbaum, 42 Fed. 341; Wheelwright v. St. L. N. O.

It is no defense to such a suit that neither of the defendants thus served, nor the plaintiff, is a resident of the district. Nor, it has been held, that the property in question has been attached by a State sheriff.

§ 166a. Cases in which statutory service can be made. Process can thus be served in an action of ejectment;1 in a suit to foreclose a railway,2 or other mortgage, but not so as to justify a decree for the deficiency against a mortgagor, who does not appear; in a suit to foreclose an attorney's lien upon personalty a stockholders' lien upon the books and funds of a foreign corporation, after its dissolution, in the State of its domicile.

8

5

Process may thus be served in a partition suit and a suit to quiet title to real or personal property; for example, a suit by the United States to cancel land patents, or by a private individual to cancel a deed,10 or by stockholders to set aside a

& O. C. Tr. Co., 50 Fed. 709; supra, § 61.

5 Ibid.

6 Wheelwright v. St. L., N. O. & O. C. & Tr. Co., 50 Fed. 709; supra, $56.

§ 166a. 1 Spencer v. Kansas City S. F. Co., 56 Fed. 741.

2 Farmers' L. & Tr. Co. v. Houston & T. C. Ry. Co., 44 Fed. 115. 3 Du Pont v. Abel, 81 Fed. 534. 4 Ibid.

5 Ingersoll v. Coram, 211 U. S. 335, 53 L. ed. 208; reversing on another point C. C. A., 148 Fed. 169; modifying and affirming 136 Fed. 689.

6 Kent v. Honsinger, 167 Fed. 619.

7 German Sav. & Loan Soc. v. Tull, C. C. A., 136 Fed. 1.

8 U. S. v. Southern Pac. Ry. Co., 63 Fed. 481; U. S. v. American Lumber Co., 80 Fed. 309; Evans v. Charles Scribner's Sons, 58 Fed. 303; Duff v. First Nat. Bank, 13 Fed. 65; Dick v. Foraker, 155 U. S. 404, 39 L. ed. 201; Citizens' Sav. & Trust Co. v. Illinois Cent. R. Co.,

205 U. S. 46, 51 L. ed. 703; Miller v. Ahrens, 150 Fed. 644; Evans v. Charles Scribner's Sons, 58 Fed. 303. See Canton Roll & Machine Co. v. Rolling Mill Co. of America, 155 Fed. 321; Gage v. Riverside Trust Co., 156 Fed. 1002; Schultz v. Diehl, 217 U. S. 594, 54 L. ed. 896; Jellenik v. Huron Copper Mining Co., 177 U. S. 1, 44 L. ed. 647; State Nat. Bank v. Syndicate Co., 178 Fed. 359; Howard v. Nat. Telephone Co., 182 Fed. 215; Sohege v. Singer Mfg. Co., Ch. N. J., Nov. 1907. As to validity of statutes authorizing similar methods of service in the State courts, see Hart v. Sanson, 110 U. S. 151, 28 L. ed. 101; Arndt v. Griggs, 134 U. S. 316, 33 L. ed. 918; Roller v. Holly, 176 U. S. 398, 44 L. ed. 520.

9 U. S. v. Southern Pac. Ry. Co., 63 Fed. 481; U. S. v. American Lumber Co., 80 Fed. 309.

10 Dick v. Foraker, 155 U. S. 404, 39 L. ed. 201; Citizens' Sav. & Trust Co. v. Illinois Cent. R. Co., 205 U. S. 46, 51 L. ed. 703; Miller v. Ahrens, 150 Fed. 644; Evans v.

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