49 fendants the court cannot take jurisdiction because of citizenship, the bill may be amended by striking out the names of such parties as plaintiffs and making them defendants, where the case is one which the remaining plaintiffs might have originally instituted without joining the others, unless as defendants.46 [§ 356] 7. Making Parties under Fictitious Names. Persons cannot be made parties to a bill in equity in federal courts by designating them by fictitious names in the introductory part of the bill and the prayer for process.47 VI. PROCESS AND APPEARANCE 48 [357] A. Process-1. In General. The process here considered is the subpoena, summons, or notice, as the practice may be in the various jurisdictions, where a court of equity acquires jurisdiction of the person or the res.50 Originally this process was a writ of subpoena; but in the United States its form now depends largely upon statute or rule of court.51 In the federal courts, sitting in equity, writs and process are regulated by the judiciary act and the equity rules, not by state statutes.52 The treatment here is limited to such matters as relate to process in a suit in equity as distinguished from an action at law. Matters pertaining to process in general, without reference to whether the proceeding is in equity or at law, are treated elsewhere in this work.53 service of formal process is essential to the acquisition of jurisdiction of the case.57 Originally suit was instituted by means of it.58 But although the practice may require the bill to be filed prior to the issuance of process, 59 the latter is none the less essential to the complete institution of the suit.60 Although a suit relates to or is ancillary to another suit in the same court between the same parties, if it is technically a new suit new process ordinarily must be issued.61 But substituted service, or actual notice, is sufficient to subject a party to the jurisdiction of the court in any ancillary proceeding, without technical service of process. Parties to an original suit are ipso facto parties to an intervening petition and new process is unnecessary to make them so." 63 But new process is necessary [ 358] 2. Necessity-a. In General.54 Ex- upon a petition which is such a radical departure cept where there is a voluntary general appear- from the case made and relief prayed by the origi55 or it is otherwise waived,5 56 the issuance and nal bill as to constitute in substance a new suit, 44. See supra § 6 text and note 56. petition, be made defendants thereto, | traterritorial service see infra § 367. 45. See Federal Courts. and such defendants appear to said 58. Pigott v. Nower, 3 Swanst. petition and demur, and demurrer is 534 note, 36 Reprint 970. overruled, and on the record waive their right to answer or further ance, 46. Anderson v. Watts, 138 U. S. 694, 11 SCt 449, 34 L. ed. 1078; Connolly v. Taylor, 2 Pet. (U. S.) 556, 7 L. ed. 518; North American Ins. Co. v. Svendsen, 74 Fed. 346. See also Belding v. Gaines, 37 Fed. 817, 819 (where the court said: "So far from treating as plaintiffs those who are property made defendants under the rules of chancery pleading, for the purpose of ousting the jurisdiction, they will, when not sued, not be permitted to make themselves plaintiffs, if the effect would be to oust the jurisdiction; but the court will on its own motion make them defendants in order that the jurisdiction may be maintained"). Federal Courts. See 47. Kentucky Silver Min. Co. v. Day, 14 F. Cas. No. 7,719, 2 Sawy. 468. See also supra § 310; infra § 395. 48. Cross references: Appearance generally see Appear- 13-177. plead thereto, it is not error to pro- 57. U. S.-Jones V. Gould, 149 183. v. More, 200 Ala. 511, Ky-White v. Park, 5 J. J. Marsh. 603; Banks v. Johnson, 4 J. J. Marsh. 649; Shields v. Craig, 1 T. B. Mon. 72; Huston v. McClarty, 3 Litt. 274; Estill v. Clay, 2 A. K. Marsh. 497; Bond v. Hendricks, 1 A. K. Marsh. 592. Process generally see Process [32 73. Cyc 412]. 49. Form of process see § 363. Me.-Stephenson v. Davis, 56 Me. infra 133. 50. Necessity of process see infra §§ 358-361. 51. See infra § 363. 52. U. S. v. American Bell Tel. Co., 29 Fed. 17. See also Federal Courts. 53. See Process [32 Cyc 412]; and special titles. 54. See also generally Process [32 Cyc 423]. 55. See infra § 373. V. 56. Root-Tea-Na-Herb Co. Rightmire, 48 W. Va. 222, 36 SE 359. [a] Waiver of process.—(1) Where a party files his petition, in the nature of an original bill in a chancery suit, praying to be made a party plaintiff, and that defendants to the suit, being named in the W. Va.-Chapman v. Maitland, 22 See also generally Courts § 96; "The omission to summon them [a] Dismissal as to defendants Time of issuance of process see ex 62 64 Time of commencement of suits see Actions § 408; Limitations of Actions [25 Cyc 1299]; Lis Pendens [25 Cyc 1463]. 59. See infra § 362. American Lumber Bills of review see infra § 898. Original bill in the nature of bill of review see infra § 925 et seq. 62. See infra § 367. 63. Central Trust Co. v. Madden, 70 Fed. 451, 17 CCA 236; McLeod v. New Albany, 66 Fed. 378, 13 CCA 525. 64. Smith v. Woolfolk, 115 U. S. 143, 5 SCt 1177, 29 L. ed. 357; La Forge v. Binns, 125 Ill. A 527; Keys Planing Mill Co. v. Kirkbridge, 114 Va. 58, 75 SE 778. ticularly necessary where the cross bill is filed after defendant thereto has allowed himself to be defaulted on the original bill.5 In still other jurisdictions the rule is that no process is necessary to bring in any party to the original bill, the cross bill being regarded as an adjunct to the original suit, and the whole together as constituting but one case." But this is subject to the condition that the cross bill, or answer in the nature thereof, is filed within the time required by law; if filed out of time, process is necessary and jurisdictional." A cross bill is so far ancillary that substituted service, generally on plaintiff's solicitor, or mere notice, is sufficient as to the original plaintiff, or may be dispensed with entirely and plaintiff required to take notice of it as in the case of any other pleading upon the ground that he is already in court by his 38 NE 593; Bevier v. Kahn, 111 Ind. 200, 12 NË 169; Joyce v. Whitney, 57 Ind. 550; Fletcher v. Holmes, 25 Ind. 458; Southward v. Jamison, 66 Oh. St. 290, 64 NE 135; Crigler v. Lyle, 1 Oh. Dec. (Reprint) 485, 10 WestLJ 162; Stripe v. National Fireproofing Co., 25 Oh. Cir. Ct. N. S. 551, 554; Kaufman v. Heckman, 13 Oh. Cir. Ct. N. S. 309. 8 original bill. Where the cross bill makes new par- v. Buckner, 134 U. S. 650, 10 SCt 12. See statutes and court rules. 13. Farmers' L. & T. Co. v. Lake Street El. R. Co., 177 U. S. 51, 20 SCt 564, 44 L. ed. 667; U. S. v. American Lumber Co., 85 Fed. 827, 29 CCA 431; Hodgen v. Guttery, 58 Ill. 431; Clark v. Slayton, 63 N. H. 402, 1 A 113. 14. Commencement of suit see Actions 408; Limitations of Actions [25 Cyc 1299]; Lis Pendens [25 Cyc 1463]. [b] In New Jersey.-"Under the practice which formerly obtained with reference to a cross-bill, answer from defendants to such a bill was required under a subpoena; but now, by the practice promulgated by rule 206, a defendant need not file a cross-bill as formerly, but may set "So long as a cross-petition in up in his answer matter which would an action is strictly confined to 'mat- have been the proper subject of a ters in question in the petition,' there cross-bill, and where such a plead- 15. Armstrong Cork Co. v. Mercan be no doubt that the summons ing is exhibited against co-defendant, chants' Refrigerating Co., 171 Fed. issued on the petition would be suf- he is required to serve a copy of 778 [mod on other grounds 184 Fed. ficient notice to sustain a judgment such pleading on such defendant in 199, 107 CCA 93]; Humane Bit Co. rendered on the cross-petition; but five days from the date of filing. v. Barnet, 117 Fed. 316; U. S. v. when the cross-petition sets up mat- When exhibited against the com- American Lumber Co., 85 Fed. 827, ters which are not drawn 'in ques- plainant he answers by special repli- 29 CCA 431; Dinsmore v. Westcott, tion in the petition,' and seeks af- cation, and when against a co-de- 25 N. J. Eq. 302. See also Saxton firmative relief against a codefend-fendant, he answers by a pleading v. Stowell, 11 Paige (N. Y.) 526 ant, of a nature different from that in the form of an answer to be filed (holding that it was fatally irregusought in the petition, a summons within thirty days from the time of lar to serve the subpoena before the to the party to be charged, issued the serving of the copy of the an- bill was filed). on the petition, will not confer swer to which he is called upon to Jurisdiction to render judgment on respond. No such practice with refthe cross-petition, especially when erence to supplemental bills which, the cross-petition is filed after the by the way, are rarely exhibited by defendant thereto is in default for defendants, has ever been prescribed, answer to the petition, and a either by statute or rule of court. summons on the cross-petition in Therefore, the original practice cof such case is necessary." Southward bringing in the defendants to a supV. Jamison, supra [quot Stripe v. plemental bill still exists." O'DonNational Fireproofing Co., supra]. nell v. McCann, 77 N. J. Eq. 188, 201, 75 A 999. [a] "No subpoena was required, where the defendant, asking to be made a party, and filing his answer and cross-bill, had an interest in, or right to, or lien upon the subject matter of the litigation. It is otherwise where he acquired an interest or lien upon the subject matter by filing of the bill." Crigler v. Lyle, 1 Oh. Dec. (Reprint) 485, 486, 10 WestLJ 162. 7. Youngson V. Bond, 64 Nebr. 615, 90 NW 556; Havemeyer v. Paul, 45 Nebr. 373, 63 NW 932; Patrick Land Co. v. Leavenworth, 42 Nebr. 715, 60 NW 954; Arnold v. Badger Lumber Co., 36 Nebr. 841, 55 NW 269. [a] In Nebraska.-(1) "The rule in this state has become elementary that, upon an answer and cross-bill 5. Southward v. Jamison, 66 Oh. filed out of time, a summons must St. 290, 64 NE 135. [a] Early chancery practice. Prior to the statute of 4 Anne c 16 § 22, it was not necessary to file the bill before issuing the subpoena. That act changed the practice and the bill had to be filed first. Pigott v. Nower, 3 Swanst. 534 note, 36 Reprint 970. See U. S. v. American Lumber Co., 85 Fed. 827, 29 CCA 431 (giving historical review). [b] The federal equity rules expressly prohibit the issuance of subpœna until after the bill is filed. Equity Rules (1912), rule 12; Equity Rules (1842), rule 11; Equity Rules (1822), rule 4. And see cases supra this note. 16. Geiser Mfg. Co. v. Chewning, 52 W. Va. 523, 44 SE 193; Wilson v. Maddox, 46 W. Va. 641, 33 SE 775. [a] In West Virginia.-"Under be served upon the necessary par- section 5, chapter 124, Code, process ties thereto, in order to give the to commence a suit is issued on the court jurisdiction to grant the af- order of plaintiff or his attorney or firmative relief sought in such cross-agent, and the declaration or bill bill. This not having been done, the may be at the same time placed in court had no jurisdiction over the the possession of the clerk, and, if parties necessary to a suit to quiet so, is filed at the rules at which the title presented by the cross-bill men- process is returnable; but, if not, the tioned, and any decree that might cause is continued from one rule have been entered would, as to such day to another, for bill or declaraparties, have been null and void." tion, if no appearance by defendant Youngson v. Bond, 64 Nebr. 615, 621, for the time specified by law." Wil90 NW 556. (2) "These authorities son v. Maddox, 46 W. Va. 641, 650, then establish this rule: That a 33 SE 775. party made defendant to an action and duly served with process is charged with notice of whatever answer any of his codefendants may file in the action only when such answer is filed by such co-defendant within the time required by law." Havemeyer v. Paul, 45 Nebr. 373, 383, 63 NW 932. 6. Fleece v. Russell, 13 Ill. 31; Carlow v. Aultman, 28 Nebr. 672, 44 NW 873; Cockle Separator Mfg. Co. v. Clark, 23 Nebr. 702, 37 NW 628: Hapgood v. Ellis, 11 Nebr. 131, 7 NW 845 [lim Havemeyer v. Paul, 45 Nebr. 373, 63 NW 932]; O'Donnell v. McCann, 77 N. J. Eq. 188, 75 A 999. [a] In Illinois, (1) by virtue of statute. the practice, on filing a cross bill, is to take a rule on defendants named therein. who are parties to the original bill, to plead answer or demur by a day named in the cross bill, and the rule or order should be served upon them. But if persons not parties are made defendants to the cross bill, summons must be issued or notice published. Michael Mace, 137 Ill. 485, 27 NE 694; Reed V. Kemp, 16 Ill. 445; Fleece v. Russell, 13 II. 31; Whitlock v. Cummings, 160 Ill. A. 184 (defendants not served and not appearing in original suit). (2) Even if plaintiff in the original bill is an infant, no service of process upon him is necessary. Kingsbury 438, 33 SE 238. V. 8. 17. Geiser Mfg. Co. v. Chewning, 52 W. Va. 523, 44 SE 193. 18. Long v. Willis, 50 W. Va. 341, 40 SE 340: Wilson v. Maddox, 16 W. Va. 641, 33 SE 775. 19. Long v. Willis, 50 W. Va. 341, 40 SE 340. 20. Geiser Mfg. Co. v. Chewning, 52 W. Va. 523, 44 SE 193. 21. Dinsmore v. Westcott, 25 N. See infra § 367. 10. [a] A mistake in date apparently showing that the writ was issued beregarded as a mere clerical error. 11. Martin v. Kester, 46 W. Va. fore the bill was filed may be dis 93 91 or But, except where waived by appearance or other- and [ 361] d. On Cross Bill.98 Under the strict chancery practice, and in the absence of statute providing otherwise," service of process on de Co. v. Citizens' St. R. Co., 72 Fed. 325; 91. Great Western Tel. Co. V. Purdy, 162 U. S. 329, 334, 16 SCt 810, 40 L. ed. 986; Smith v. Woolfolk, 115 U. S. 143, 148, 5 SCt 1177, 29 L. ed. 357. "After a decree disposing of the issues and in accordance with the prayer of a bill has been made, it is not competent for one of the parties, without a service of new process or appearance, to institute further proceedings on new issues and for new objects, although connected with the subject matter of the original litigation, by merely giving the new proceedings the title of the original cause. If his bill begins a new litigation, the parties against whom he seeks relief are entitled to notice thereof, and without it they will not be bound." Smith v. Woolfolk, supra [quot Great Western Tel. Co. v. Purdy, supra]. 92. McGrath v. Balser, 6 B. Mon. (Ky.) 141. the [a] Rule applied-Where parties to a suit in chancery had agreed upon a dismissal of the suit and an order was given by complainant for its dismission and defendant had agreed to pay a sum of money, upon filing an amended cr supplemental, bill suggesting the noncompliance of defendant and asking a decree agreeable to the compromise, process should have issued on such bill. McGrath v. Balser, 6 B. Mon. (Ky.) 141. 93. Great Western Tel. Co. V. Purdy, 162 U. S. 329, 16 SCt 810, 40 L. ed. 986; Smith v. Woolfolk, 115 U. S. 143, 5 SCt 1177, 29 L. ed. 357; McGrath v. Balser, 6 B. Mon. (Ky.) 141. 94. Shaw v. Bill, 95 U. S. 10, 24 L. ed. 333. 95. Smith v. Woolfolk, 115 U. S. 143, 5 SCt 1177, 29 L. ed. 357. 96. See infra § 367. 97. Minnesota Co. v. St. Paul Co., 2 Wall. (U. S.) 609, 17 L. ed. 886 [quot and appr Carey v. Houston, [21 C J.-23] fendants to a cross bill, although parties to the original bill, and in court for all the purposes thereof, is necessary to bring them into court on the cross bill; their appearance must be enforced in the same manner as that of defendants to the original bill, unless they voluntarily enter their appearance.1 This rule is particularly applicable where the cross bill seeks relief against codefendants,2 the practice in some jurisdictions making a distinction between plaintiffs and codefendants as cross defendants, process on the cross bill being required as to codefendants but not as to plaintiffs in the original suit.3 In other jurisdictions the rule is that process is unnecessary if the cross bill is limited to matters drawn in question by the original bill; but if the cross bill goes beyond this, and seeks affirmative relief, process is necessary, and process is par 121. etc., Co., 161 U. S. 115, 16 SCt 537, | ings. Francis v. Smith, 1 Duv. (Ky.) Cross bills generally see infra §§ 596-617. 99. See statutory provisions. [a] Failure of the statute to require process (1) does not dispense with it, but leaves the equity practice in force. Southward v. Jamison, 66 Oh. St. 290, 64 NE 135. (2) In the absence of any statutory provision, proceedings in cases of cross complaints are governed by proceedings as defined in chancery. Phillips V. Branch Mint Min., etc., Co., 27 S. D. 350, 131 NW 308. [b] In Iowa, under the revision of 1860, and the Code of 1851, process upon an answer in the nature of a cross bill is not necessary in the case of an infant plaintiff suing by "next friend and guardian." Treiber v. Shafer, 18 Iowa 29. [c] In South Dakota it was held that the old equity system prevailed, "no other system having been provided by the Code." Phillips Branch Mint. Min., etc., Co., 27 S. D. 350, 363, 131 NW 308. V. 1. U. S.-Washington, etc.. R. Co. v. Washington, 10 Wall. 299, 19 L. ed. 894; Wright v. St. Louis, etc., R. Co.. 175 Fed. 845 [app dism 181 Fed. 1023 mem, 104 CCA 670 mem]; Hook v. New York Mercantile Trust Co.. 95 Fed. 41, 36 CCA 645; Lowenstein V. Glidewell, 15 F. Cas. No. 8,575, 5 Dill. 327. Fla.-Bosworth v. Sandlin, 46 Fla. 532, 35 S 66. Ill.-Ballance v. Underhill, 4 Ill. Ky. Lair v. Jelf, 3 Dana 181; Miss.-Thomason V. Neeley, 50 Oh. Southward v. Jamison, 66 Oh. Pa-Cluman V. Cluman, 41 Pa. Tenn.-Hamilton V. Hewgley, 3 Tex.-Harris v. Schlinke, 95 Tex. Va.-Pracht v. Lange, 81 Va. 711. [a] Rule applied.-In an action [b] "The Code has changed this practice, but it has not abolished the principle that a party is entitled to notice of judicial proceedings instituted against him or his property." Havemeyer v. Paul, 45 Nebr. 373, 381, 63 NW 932. Ancillary proceedings see infra § 367. Appearance generally see infra § 373. Substituted service see infra § 367. 2. Smith v. Woolfolk, 115 U. S. 143, 148, 5 SCt 1177, 29 L. ed. 357; Phillips v. Branch Mint. Min., etc., Co., 27 S. D. 350, 131 NW 308; Jones v. Blankenship, 79 W. Va. 541, 91 SE 389; Turner v. Stewart, 51 W. Va. 493, 41 SE 924; Grobe v. Roup, 46 W. Va. 488, 33 SE 261. See also cases supra note 1: infra note 3. "It is settled that one defendant cannot have a decree against a codefendant without a cross-bill, with proper prayer, and process or answer, as in an original suit." Smith v. Woolfolk, supra. 3. Ala. Farmers' State Bank v. Kirkland. 200 Ala. 146, 75 S 894. Ark.-Pillow v. Sentelle, 49 Ark. 430, 5 SW 783; Horner v. Hanks, 22 Ark. 572. Ky.-Peak V. Perciful, 3 Bush 218; Horine v. Moore, 14 B. Mon 311; Anderson v. Ward, 6 T. B. Mon. 419; Shelby v. Smith, 2 A. K. Marsh. 504. N. Y.-Ledbetter v. Mandell, 124 App. Div. 854, 109 NYS 602 (declaring Arkansas law). W. Va.-Grobe v. Roup, 46 W. Va. 488, 33 SE 261; Martin v. Kester, 46 W. Va. 438, 33 SE 238; Goff v. Price, 42 W. Va. 384, 26 SE 287. [a] Reason for distinction -"As to the plaintiff, we may, with reason. dispense with process upon such an answer, because he is in court voluntarily, and he has called the defendant into court for the very purpose of having him answer, and he must be always in court to see his answer, and notice can not reasonably be demanded by him. But a defendant is brought into court unwilling, and is summoned to answer only the plaintiff's bill." Goff v. Price, 42 W. Va. 384, 389, 26 SE 287. [b] In West Virginia.-"An answer, under section 35, chapter 125, Code, containing new matter constituting a claim for affirmative relief. may be taken for confessed as against the plaintiff, but not against another defendant, without service of process." Goff v. Price, 42 W. Va. 384. 26 SE 287 [quot Grobe V. Roup, 46 W. Va. 488, 491, 33 SE 261]. 4. Shaul v. Rinker, 139 Ind. 163, ticularly necessary where the cross bill is filed after 638, 33 L. ed. 1047. original bill. Where the cross bill makes new parties, 10 process is necessary to bring them in.11 [362] 3. Issuance. Subject to the requirements of any applicatory statute or court rule,12 suits in equity are commenced by filing the bill of complaint,is although often the suit is not deemed effectively commenced until issuance or even service of process, 14 and process cannot regularly issue until after the bill is filed.15 In some jurisdictions, the suit is commenced by suing out the writ, and the bill is, or may be, filed afterward,16 in which case it relates back to the issuance of the writ.1 Process to answer an amended bill is good whether issued before,18 or after 19 such amended bill is filed. The date of the writ is prima facie evidence of the time of its issuance,20 but it is not conclusive, and a mistake in the date may be corrected.21 A failure 38 NE 593; Bevier v. Kahn, 111 Ind. | v. Buckner, 134 U. S. 650, 10 SCt "So long as a cross-petition in an action is strictly confined to 'matters in question in the petition,' there can be no doubt that the summons issued on the petition would be sufficient notice to sustain a judgment rendered on the cross-petition; but when the cross-petition sets up matters which are not drawn 'in question in the petition,' and seeks affirmative relief against a codefendant, of a nature different from that sought in the petition, a summons to the party to be charged, issued on the petition, will not confer jurisdiction to render judgment on the cross-petition, especially when the cross-petition is filed after the defendant thereto is in default for answer to the petition, and a summons on the cross-petition in such case is necessary.' Southward V. Jamison, supra [quot Stripe v. National Fireproofing Co., supra]. [a] "No subpoena was required, where the defendant, asking to be made a party, and filing his answer and cross-bill, had an interest in, or right to, or lien upon the subject matter of the litigation. It is otherwise where he acquired an interest or lien upon the subject matter by filing of the bill." Crigler v. Lyle, 1 Oh. Dec. (Reprint) 485, 486, 10 WestLJ 162. 5. Southward v. Jamison, 66 Oh. St. 290, 64 NE 135. 12. See statutes and court rules. 13. Farmers' L. & T. Co. v. Lake Street El. R. Co., 177 U. S. 51, 20 SCt 564, 44 L. ed. 667; U. S. v. American Lumber Co., 85 Fed. 827, 29 CCA 431; Hodgen v. Guttery, 58 Ill. 431; Clark v. Slayton, 63 N. H. 402, 1 A 113. 14. Commencement of suit see Actions § 408; Limitations of Actions [25 Cyc 1299]; Lis Pendens [25 Cyc 1463]. [b] In New Jersey.-"Under the practice which formerly obtained with reference to a cross-bill, answer from defendants to such a bill was required under a subpoena; but now, by the practice promulgated by rule 206, a defendant need not file a cross-bill as formerly, but may set up in his answer matter which would have been the proper subject of a cross-bill, and where such a plead15. Armstrong Cork Co. v. Mering is exhibited against co-defendant, chants' Refrigerating Co., 171 Fed. he is required to serve a copy of 778 [mod on other grounds 184 Fed. such pleading on such defendant in 199, 107 CCA 93]; Humane Bit Co. five days from the date of filing. v. Barnet, 117 Fed. 316; U. S. v. When exhibited against the com- American Lumber Co., 85 Fed. 827, plainant he answers by special repli- 29 CCA 431; Dinsmore v. Westcott, cation, and when against a co-de- 25 N. J. Eq. 302. See also Saxton fendant, he answers by a pleading v. Stowell, 11 Paige (N. Y.) 526 in the form of an answer to be filed (holding that it was fatally irreguwithin thirty days from the time of lar to serve the subpoena before the the serving of the copy of the an- bill was filed). swer to which he is called upon to respond. No such practice with reference to supplemental bills which, by the way, are rarely exhibited by defendants, has ever been prescribed, either by statute or rule of court. Therefore, the original practice of bringing in the defendants to a supplemental bill still exists." O'Donnell v. McCann, 77 N. J. Eq. 188, 201, 75 A 999. [a] Early chancery practice.— Prior to the statute of 4 Anne c 16 § 22, it was not necessary to file the bill before issuing the subpœna. That act changed the practice and the bill had to be filed first. Pigott v. Nower, 3 Swanst. 534 note, 36 Reprint 970. See U. S. v. American Lumber Co., 85 Fed. 827, 29 CCA 431 (giving historical review). [b] The federal equity rules expressly prohibit the issuance of subpoena until after the bill is filed. Equity Rules (1912), rule 12; Equity Rules (1842), rule 11; Equity Rules | (1822), rule 4. And see cases supra 7. Youngson v. Bond, 64 Nebr. 16. Geiser Mfg. Co. v. Chewning. 52 W. Va. 523, 44 SE 193; Wilson v. Maddox, 46 W. Va. 641, 33 SE 775. process is returnable; but, if not, the Wil [a] In Nebraska.-(1) "The rule in this state has become elementary that, upon an answer and cross-bill filed out of time, a summons must [a] In West Virginia.-"Under be served upon the necessary par- section 5, chapter 124, Code, process 6. Fleece v. Russell, 13 Ill. 31; ties thereto, in order to give the to commence a suit is issued on the Carlow v. Aultman, 28 Nebr. 672, 44 court jurisdiction to grant the af- order of plaintiff or his attorney or NW 873; Cockle Separator Mfg. Co. firmative relief sought in such cross-agent, and the declaration or bill v. Clark, 23 Nebr. 702, 37 NW 628: bill. This not having been done, the may be at the same time placed in Hapgood v. Ellis, 11 Nebr. 131, 7 court had no jurisdiction over the the possession of the clerk, and, if NW 845 [lim Havemeyer v. Paul, 45 parties necessary to a suit to quiet so, is filed at the rules at which the Nebr. 373, 63 NW 932]; O'Donnell v. title presented by the cross-bill menMcCann, 77 N. J. Eq. 188, 75 A 999. tioned, and any decree that might [a] In Illinois, (1) by virtue of have been entered would, as to such statute. the practice, on filing a parties, have been null and void." cross bill, is to take a rule on de- Youngson v. Bond, 64 Nebr. 615, 621, fendants named therein, who are 90 NW 556. (2) "These authorities parties to the original bill, to plead then establish this rule: That a answer or demur by a day named party made defendant to an action in the cross bill, and the rule or and duly served with process is order should be served upon them. charged with notice of whatever anBut if persons not parties are made swer any of his codefendants may defendants to the cross bill, sum- file in the action only when such mons must be issued or notice pub-answer is filed by such co-defendlished. Michael V. Mace, 137 Ill. ant within the time required by 485, 27 NE 694; Reed V. Kemp, law." Havemeyer v. Paul, 45 Nebr. 16 Ill. 445; Fleece v. Russell, 13 Ill. 373, 383, 63 NW 932. 31; Whitlock v. Cummings, 160 Ill. A. 184 (defendants not served and not appearing in original suit). (2) Even if plaintiff in the original bill is an infant, no service of process upon him is necessary. Kingsbury 438, 33 SE 238. See infra § 367. 8. Geiser Mfg. Co. v. Chewning, 18. Long v. Willis, 50 W. Va. 341, 40 SE 340: Wilson v. Maddox, 46 W. Va. 641, 33 SE 775. 19. Long v. Willis, 50 W. Va. 341, 40 SE 340. 20. Geiser Mfg. Co. v. Chewning, 52 W. Va. 523, 44 SE 193. 21. Dinsmore v. Westcott, 25 N. J. Eq. 302. [a] A mistake in date apparently showing that the writ was issued be 11. Martin v. Kester, 46 W. Va. fore the bill was filed may be dis regarded as a mere clerical error. to issue process of subpoena until after the service of another writ is a mere irregularity.22 In early days, the writ had to be allowed or granted by the chancellor, who had discretion to withhold it where the bill did not make a proper case for its issuance.23 But in modern practice the process issues as of course from the clerk's office,24 subject to be suspended, altered, or rescinded by the court.25 The practice prevailing in some states by which plaintiff's attorney issues the process 26 does not prevail in the federal courts.27 A subpoena which has already been used cannot be altered and used in another suit without the authority of the court.28 30 "Suing out process" in equity is the same in meaning as suing out process at law.29 It means that, upon the filing of a bill, a writ of subpœna is filled out by the clerk and delivered for service.3 An alias writ may be issued when necessary.3 The awarding of alias process on the ground that the original had been insufficient ipso facto vacates proceedings under the original.32 31 38 the court, after the filing of the bill, running in the name of the king, addressed to defendant in person, and commanding him to appear personally on a day therein specified, to answer such things as should then and there be alleged against him and to do and receive what the court should consider in that behalf, and this not to omit under penalty of one hundred pounds.34 In some jurisdictions, including the federal courts, the subpoena is still retained in name and substance,35 and wherever no different form of process has been prescribed, a subpoena may be used.36 But the form and sufficiency of process is now very largely regulated by statutes and rules of court,37 process in equity and at law being sometimes assimilated and made the same. Process not in accordance with such requirements is, of course, insufficient.39 A process in form of a subpoena may be supported, although the statute prescribes a summons or other form of original process, provided the subpoena contains the essentials of the statutory process, 40, but not otherwise.11 A common-law writ of summons has been held sufficient, although, of course, equitable relief cannot be had in an action at law,43 except in Pennsylvania, and where codes or practice acts abolish the "Had the statute omitted to prescribe any form of process, or to give any authority to the Court to make one, the bill as used in England in chancery proceedings, and the proceedings under it as there practised, would necessarily have been adopted here, for it would be presumed that the legislature having given jurisdiction, intended it should be exercised according to the most approved forms in that country, which had been the source from which this and other States in the union had derived their principles and practice in the administration of justice; and it was without doubt expected that the Court here, on prescribing writs and processes to carry into execution this new jurisdiction, would conform to those which had been established in England, as near as would be consistent with that prompt administration of justice which it was desirable to attain." Com. v. Sumner, supra. [363] 4. Form and Sufficiency.33 In the English chancery the fundamental writ for subjecting defendant to the jurisdiction of the court was the subpoena ad respondendum, a writ issued out of Hemmer v. Wolfer, 124 Ill. 435, 16 NE 652. 22. Calwell v. Boyer, 8 Gill & J. (Md.) 136 (commission to take the answer of infants without first issuing the subpœna). [a] Service of injunction.-The court refused to dismiss where a subpoena was not taken out for more than three months after the bill was filed, but an injunction had been served on defendant. Stone v. Stone, 163 Mass. 474, 40 NE 897. 23. U. S. v. American Lumber Co., 85 Fed. 827, 29 CCA 431. 24. Federal Equity Rules (1842), rule 12; Federal Equity Rules (1912), rule 12; Pittsburgh Water Heater Co. v. Beler Water Heater Co., 222 Fed. 950; U. S. v. American Lumber Co., 85 Fed. 827, 29 CCA 431. 25. Federal Equity Rules (1842), rule 5; Federal Equity Rules (1912), rule 5; U. S. v. American Lumber Co., 85 Fed. 827, 29 CCA 431. 26. McKee v. Harris, 1 Iowa 364 (holding that an "original notice" may be issued either by the clerk or by a party). See also Process [32 Cyc 426]. [a] Process in blank to be filled up by plaintiff's solicitor has been authorized. Merrill v. Townsend, 5 Paige (N. Y.) 80. 27. Middleton Paper Co. v. Rock River Paper Co., 19 Fed. 252. See also Federal Courts. 28. Saxton v. Stowell, 11 Paige (N. Y.) 526. 29. U. S. v. American Lumber Co., 85 Fed. 827, 29 CCA 431. 30. U. S. v. American Lumber Co., 85 Fed. 827, 831, 29 CCA 431. "In order that the writ be deemed to be sued out, it must have left the possession of the officer who issued it, and must either have reached the possession of the officer who is to serve it, or the possession of some one who is the medium of transmission to such officer." U. S. v. American Lumber Co., supra. 31. Federal Equity Rules (1912), rule 14. 32. Hardy v. Moore, 4 Fed. 843. 33. Constructive or substituted service see infra § 367. 34. U. S. v. American Lumber Co., 85 Fed. 827, 29 CCA 431; Pigott v. Nower, 3 Swanst. 534 note, 36 Reprint 970; 1 Daniell Ch. Pr. pp 554, 556. 35. See statutory provisions; and Federal Equity Rules (1912), rule 7. 36. Com. V. Sumner, 5 Pick. (Mass.) 360, 365. 37. and: 44 42 See statutes and court rules; 364. Mass.-Com. V. Sumner, 5 Pick. 360. Mich.-Corning V. Burton, 102 [a] Rule applied.-A bill was filed indorsed with a notice to appear in accordance with the old practice and not in accordance with the new rules; upon this bill a preli:ninary injunction was granted. The bill not being in compliance with the new rules, all proceedings consequent thereupon were void. Cassidy v. Knapp, 167 Pa. 305, 31 A 638. 40. 41. Black McKee v. Harris, 1 Iowa 364. McKee v. Harris, 1 Iowa 364; v. Clendenin, 3 Mont. 44. Haverhill Iron Works v. Hale, 64 N. H. 406, 14 A 78. 42. [a] In New Hampshire.-" "In any case brought in any court, process may be served and notice given by duly attested copy.' Laws 1883, c. 22. When a bill in equity is filed in the clerk's office, he may issue a subpoena or order of notice (Equity Rules 11 and 13); and when a plain tiff elects that course, his suit is not commenced until his bill is filed. Clark v. Slayton, 63 N. H. 402, 1 A 113. But there is no rule or statute prohibiting his use of the best inventible procedure. Boody v. Watson, 64 N. H. 162, 9 A 794, and authorities there cited. If the defendant had failed to enter his appearance because he did not look for the action on the equity docket, he would have been relieved upon his showing a case of accident, mistake, or misfortune (G. L., c. 234, s 1); but the possibility of his not looking for the action in the docket in which it ought to be entered does not deprive the plaintiff of the right to employ convenient process. The nature of the action was not affected by the form of the notice. The summoning paper might be an order of notice, a writ of subpoena, or a writ of summons. Whichever form is used, the distinction between [b] Process by attachment.-A law and equity is fully maintained. statute authorizing the insertion of The declaration, of which the defenda bill in equity in a writ of attach-ant received a copy, shows that the ment was held not applicable to a suit which he was notified to defend suit founded upon a later statute which was complete in itself, the court announcing an unwillingness to liberally construe a statute extending arrest to equity cases. Com. v. Sumner, 5 Pick. (Mass.) 360. 38. 44. N. H.-Haverhill Iron Works v. W. Va.-Geiser Mfg. Co. v. Chewn- [a] An order to show cause is sufficient to bring in a new party, without the issuance and service of formal process. Berryman v. Haden, 112 Ga. 752, 38 SE 53. See statutory provisions; and 39. McKee v. Harris, 1 Iowa 364; was a suit in equity. A writ of summons containing a bill in equity inserted as a declaration may often be more convenient than a writ of subpoena, or an order of notice, obtained from the clerk after the bill is filed; and no inconvenience has been suggested that ought to exclude so appropriate and desirable a process." Haverhill Iron Works v. Hale, 64 N. H. 406, 407. 14 A 78. 43. Norton v. Preston, 15 Me. 14, 32 AmD 128. 44. See supra § 5 note 39 [11]. |