the main action, the purpose of which is to reach property belonging to the defendant, and certain steps are necessary to obtain jurisdiction of the property, it is held, in some of the cases, that an appearance to the main action, by which the court is authorized to render a personal judgment against the defendant, does not give the court jurisdiction of the property or waive the right of the party to contest such jurisdiction.1 In order to give jurisdiction over the person of a minor, he must be served with process. It can not be given by an appearance by him, or by any one representing him. It is held, however, that a statutory guardian may appear and answer for his ward without service of process. A special appearance to contest the jurisdiction of the court does not give the court jurisdiction.*

5

35. NATURE AND DIFFERENT KINDS OF ORIGINAL PROCESS.Original process, in the sense in which we are now to consider it, was, at common law, the means of compelling a defendant to come into court. Under the practice of the present day it may be defined as the means of notifying the defendant of the commencement of an action or proceeding against him or his property, and that if he does not appear, judgment will be taken for the relief demanded. It has been defined as "a form of proceeding taken in a court of justice for the purpose of giving compulsory effect to its jurisdiction." 6

At common law an action was commenced by the issuance of the original writ out of the court of chancery. The original writ was defined as "a mandatory letter from the king, in parchment, sealed with his great seal, and di

intergating Co., 18 Wall. 272; Kinkade v. Meyers, 17 Or. 470; 21 Pac. Rep. 557.

1 Ante, sec. 14; Noyes v. Canada, 30 Fed. Rep. 665.

2 Ante, sec. 13; Carver v. Carver, 64 Ind. 194; Helmes v. Chadbourne, 45 Wis. 60; Roy v. Rowe, 90 Ind. 54. But see on this question, Simmons v. Baynard, 30 Fed. Rep. 532.

* Ante, secs. 13, 22; Branner v. Chapman, 11 Kan. 118.

5 3 Bl. Com. 279.

Foulke's Ac. in Sup. Ct. 50.

rected to the sheriff of the county wherein the injury is committed or supposed so to be, requiring him to command the wrong-doer, or party accused, either to do justice to complainant, or else to appear in court and answer the accusation against him."1

This writ was the foundation of the suit. It was followed by what was called the process which was the means of compelling the defendant to comply with the original writ and appear in court or do justice to the complainant.2

The first of these was a notice to the defendant to obey the original writ and called a summons. If this was not obeyed, an attachment was issued against the defendant's property, followed by the writ of distringas which required. the sheriff to continue to distrain the defendant by taking his goods and the issues of his lands until he rendered obedience to the original writ.3

In actions for forcible injuries various writs against the person of the defendant, not necessary to enumerate, were resorted to.*

In equity the first process was a subpena, which was a writ "commanding the defendant to appear and answer to the bill on pain of £100." If the defendant did not appear in response to the subpena, he was then in contempt, and the writs of attachment and attachment with proclamation followed. If they failed to produce the defendant in court, a commission of rebellion was awarded against him for not obeying the king's proclamation, four commissioners being named whose duty it was to attach the defendant wherever found in Great Britain. If this failed, a sergeant-at-arms was sent in quest of him, and, if the defendant eluded his search, then sequestration issued to seize all of his personal estate and the issues of his real estate. If the defendant was taken upon any of the process, he was committed to prison until he put in an appearance, or answer, or performed whatever else the

13 Bl. Com. 273.

3 Bl. Com. 279.

3 Bl. Com. 281.

33 Bl. Com. 279, 280.

process was issued to enforce and paid the costs which the plaintiff had incurred thereby.'

It will thus be seen that the object of process in both common law and equity courts was to compel a defendant to appear, or do justice.

The mode of procedure of the two courts differed mainly in this: The common-law courts, in order to enforce obedience to the original writ, proceeded against the property of the defendant, while the process of the courts of equity was directed primarily against his person.2

In actions for injuries without force the common-law courts could not deprive a defendant of his liberty to compel him to appear. By treating his failure to respond to the subpena a contempt, a court of equity proceeded against his person first, and, if that failed, his property was sequestered and held subject to the order of the

court.

Under the civil law, which was followed by the ecclesiastical courts of England, the means of calling a defendant before the court was a personal citation.3 This process is often called a monition, and is the process adopted and used by the admiralty courts.*

Process, under the present practice in this country and in England, is not used to compel a party to appear, but to give him the opportunity to do so." And while, in a sense, there is a penalty attached to his failure to appear, it is nothing more than that, upon such failure, the relief prayed for by the plaintiff will be granted to him and judgment be rendered against the defendant therefor. Therefore all of the common-law and equity writs and proceedings that were designed to enforce the appearance of a party in court have become obsolete.

In most of the states in this country, and in England, the old common-law and equity writs, as well as those writs adopted by the courts of England from the civil law, have been superseded by the writ of summons. This writ

13 Bl. Com. 443, 444. $3 Bl. Com. 100, 279.

2 Foulke's Ac. in Sup. Ct. 10. * Anderson's Dic. of Law, 684.

5 Ante, sec. 33; Elliott's App. Pro., sec. 170.

has been defined to be "a letter missive from the sovereign, issued at the instance of a plaintiff in a civil action for the purpose of compelling the defendant to appear and answer the claim on pain of judgment being given against him in his absence." But this is not a satisfactory definition. It conveys the idea that a summons, under the present practice, like process at common law, is intended. to compel a party to appear, when its real purpose is to notify a defendant in order that he may appear and defend if he desires to do so.2

In some of the states a summons, so called, is not a writ issuing out of the court, but a mere notice given and signed by the attorneys. Generally, however, it is required to issue out of and under the seal of the court.* But, whether it is signed by the attorney of the plaintiff, or issued under the seal of the court, its object and legal effect is the same. It is a notice to the defendant to appear or suffer a default. To summon a party is to notify him that he has been sued, so that he may appear in court and answer the complaint. It is one of the means by which a court acquires jurisdiction of the person of a defendant."

In some of the states the writ, or notice, corresponding to the summons in the other states, is denominated a citation.? In some of the states it is called what it really is, a notice.s

In those states in which the equity courts and practice are still maintained, and also in equity cases in the federal courts, the writ of subpena is still in use. And it is a little curious to see the old writ of subpena, with its money penalty for non-appearance, still in use in the federal and some other courts in this country, since it has been abolished in the country in which it originated."

'Foulke's Ac. in Sup. Ct. 51.

2 Mezchen v. More, 54 Wis. 214; 11 N. W. Rep. 534.

3 Post, sec. 36; Mezchen v. More, 54 Wis. 214; 11 N. W. Rep. 534. 'Post, sec. 36.

6 Ante, secs. 13, 22, 23, 32, 33.

8

5 Anderson's Law Dic. 992.

Miles v. Kinney, 8 S. W. Rep. 542.

Gray v. Wolf, 77 Ia. 630; 42 N. W. Rep. 504.

'Barton's Suit in Eq. 65.

In some of the states in which the chancery court is still maintained, the writ issued is still called a subpena, but it has been so modified in form as to contain the substance of the ordinary summons.'

In many proceedings, especially in probate matters, notice is provided for, not in the form of a summons or other formal writ, but as a simple notice of the time and place of taking some proposed action in a court or other tribunal.

In the federal courts, in admiralty proceedings, the notice of the civil law known as a monition is still in use.2 But it is in the nature of a summons, although it may, in some cases, be a general citation to all persons, and in others a special citation to individuals named, or a mixed monition containing special directions to all persons, and a special summons to particular persons.3

A citation is defined to be "a writ issued out of a court of competent jurisdiction, commanding a person therein named to appear and do something therein mentioned, or to show cause why he should not on a day named." But, like the summons of the present day, it is, as now used, rather a notice than a command to appear, and differs in no material respect from the statutory summons. Indeed, while the original process by which a court acquires jurisdiction is differently named in different states, it is essentially the same in all, and is intended to subserve the same purpose.

In England, where the numerous common-law writs for the enforcement of the attendance of the defendant had their origin, the change has been even more radical than in this country, where courts of equity are still maintained as separate and distinct tribunals in some of the states, and the equity practice is still maintained in the federal courts. In England the old writs were, by successive acts of parliament, materially modified, and the system, as a whole, abolished. And finally, by the judicature acts, all

1 Barton's Suit in Eq. 66. Anderson's Dic. of Law, 684.

2 Windsor v. McVeigh, 93 U. S. 274.

Bouv. Law Dic., title Citation.