Watertown republican. [volume] (Watertown, Wis.) 1860-1906, 1873-07-02
Process in the U. s. Court Must be
Served According to State Law.

The following opinion of Hon. James G.
Hopkins, U. s. District Judge, is important
as it reverses the previous practice in the
U. s. Courts:
e. s. CIRCUIT CoURr, WESTERN DlsTIcr or
WISCONSIN. Perkins vs. The City
fWatertown, and tour other cases against
ssame Defendant
June Term 1873 Before Hon, David
Davis, Justice of the Supreme Court, and
J. c. Hopkins, District Judge.
Opinion OF Court by Hopkins, D. J:
In one of the above entitled cases, the
summons was served b. delivering copy to
| the Mayor elect before he had accepted or
| qualified
! In other cases the summons was served
| on the City Clerk and City Treasurer the
| Marshal returning that there was neither
Mayor or Acting Mayor upon whom he
could serve the same
| Inc defendants now move to set aside thu
service as insufficient, appear specially for
such purpose only.
The charter of the city authorizes suits to
be commenced against it by the service OF
process upon the Mayor, and the question
now presented is whether it can be served
upon any other officer or party, so as to
| give this Court Jurisdiction
Rule 80, of this Court Common Law) is
as follows: sin suits against corporations
the process may be served in the mode pre-
| scrihed by the laws of the State. But a
Judge OF the Court, in peculiar cases. on
motion may prescribe any other mode of
| service he may deem right and proper"
This rule was adopted in 1870. Under it
authority is given in peculiar cases) to q
Judge of the Court to prescribe other modes
of service, but in all ordinary cases adopts
the mode of service prescrbad by the State
statutes.
My Associate expressed some doubt as to
the power Of the Court to make such rule
originally, but that question not being neces-
sarily before the Court, 40 decision Of it
was reached. In these cases no order had
been made changing the mode of service
from that prescribed by the State statutes
bat it was claimed by the plaintiffs that
an order could have been made authorizing
service to have been made on the parties
in fact served. the Court could now ratify
such service, and in that view the power of
a Judge to grant an order changing the
statutory mode of service. since the passage
of the act of Congress of June |, 1872, bs-
comes material. 1t is claimed that it abro-
gates that part of the rule authorizing any
other mode Of service than is prescribed by
the State statute.
The 9Th section of the act, above men
toned adopts the ''practice, pleading and
forms and modes of proceed; n.y. as near as
| need be OF the State Courts in common law
cases, and abrogates all rules of the Circuit
| or District Courts to the contrary This
| Court by the rule itself above quoted, adop-
ted the State mode Of service, so that it car
not now consistently hold it to be imprac-
tcabe to conform to that mode. and if it is
pra cticable, by the act above quoted, it is
exclusive. The state practice or mode is the
rule now on the subject, and this Court has
no more power to authorize any other mode
than the State Courts have State laws,
when adopted by Congress- becomes obliga-
tory on the Federal Courts. There can be
no doubt but that the service of process is a
'mode of proceeding" Similar phaseology
in the act of 1892, l Statute-at- Large. 275,
was construed in Wayman v Southland
10, Wheaton |, e, Curtis 3I9) to include
{ the service of process. The court there say:
| sit may, then, ard ought to be understood
as prescribing the conduct of the officer in
| the execution of process, that being a part
of the proceedings in the suit" This would
seem to settle the question that the service
ofprocess is within the meaning of the act
of June LIST, 1872, and being so the mode
OF service prescribed by the State laws must
| be followed, and the power of this court to
prescribe or substitute any other mode is
| necessarily abrogated.
Foreign creditors are placed by that act on
equal terms with domestic. creditors, and
we do not see any reason why the federal
courts should be appealed to or should grant
any special advantages in their favor The
corporation is created by the state legisla-
ture, lts'powers and rights en1inate from that
source, and if there are defects in the orgau-
ic law, it is for the legislature and not the
courts, to correct them.
| 1t was argued that by the original chart
| er service Of process might be on the mayor
| or clerk, and that the legislature could Dot
alter the charter in that respect, after the
issue of these bonds. That point we do not
| think well taken. 1t was not part of the
con tract in any sense, and the legislature
could prescribe a different mode without
lmpairing the obligation of the contract.
| The service on the mayor elect before &C
ceptance or qualification, was not service
on the mayor of this city. We therefore
I
think the service in each case was insufici-
ent to give this court jurisdiction of the
defendant
It was stated and shown by the papers
that there was no mayor or acting mayor
upon whom service could be made under the
state law; but that does not augment the
| power fthis court, or confer upon it legis-
lative authority. Courts must administer
the law as they find it, not supply defects
in legislation when difficult or hard case
presents itself
| Such considerations are to be addressed to
the law-making power, not to the courts.
But as the service in these several cases is
wholly insufficient to give Jurisdiction these
motions are unnecessary, and defendant is
| not entitled to any relief as it is not injured
thereby. The plaintiff may Withdraw from
| the flies the summons in each case, and
| redeliver them to the marshal for service
according to law, if they wish to do so.
And an order to that effect may be entered
HARLOW PEAsE, for Defts.,
W. F. Villas D. ORDwAY, for Pitts.
= Postal Guide.
We are in receipt of a copy of the quar-