$120. Filing the bill. The next step in the suit is to cause the bill to be filed in the proper office. What this office is depends upon the court in which the proceeding is instituted. In most jurisdictions the bill is filed in the office of the clerk of the court in which the suit is about to be commenced.313 313 For full consideration of when a pleading is filed, see Meridian Nat. Bank v. Hoyt & Bros. Co., 74 Miss. 221, 21 So. 12. (159) CHAPTER VI. PROCESS FOR APPEARANCE. § 121. Subpoena to appear. 3 The practice in courts of equity is to commence the suit in all cases by filing the bill of complaint, which concludes by praying for an appropriate process, which is then issued accordingly. The writ of subpoena is a writ issuing out of and under the seal of the court, commanding the defendant personally to appear in court on a certain day, to answer the bill of conplaint, and usually issues of course, upon filing the bill, without entering any order for that purpose. The ordinary writ of subpoena requires the defendant to appear and answer the bill on a certain day named in the writ, under a certain penalty. It was introduced into the court of chancery to compel an appearance to a suit in equity, by Bishop Waltham, master of the rolls and temporary keeper of the great seal, during the absence of the chancellor abroad, in the reign of Richard II.* It was anciently and originally a process in the common-law courts, 14 Minor, Inst. Com. & St. Law (2d Ed.) 1232 (1116); Mitford, Eq. Pl. 7, 46; Cooper, Eq. Pl. 16; 1 Barbour, Ch. Pr. 48, 49; Story, Eq. Pl. §§ 44, 45; Crowell v. Botsford, 16 N. J. Eq. 459, discussing the practice fully. Such is the practice in many of the states, including Illinois and Michigan, and in the courts of the United States. United States Equity Rule 7; Michigan Chancery Rule 9; Rev. St. Ill. c. 22, § 8. In Virginia the summons is generally issued in the first instance, and the bill is not usually, or at least not necessarily, filed until the return day of the summons, save where an injunction is sought, when the bill must be presented to the court in the first instance. 4 Minor, Inst. Com. & St. Law (2d Ed.) 1232 (1116). For practice in New Hampshire, see Haverhill Iron Works v. Hale, 64 N. H. 406, 14 Atl. 78. 1 Barbour, Ch. Pr. 49; Gibson, Suit in Ch. § 216. 1 Barbour, Ch. Pr. 49. 4 Story, Eq. Pl. § 45; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1227, 1228 (1112); 3 Bl. Comm. 51, 52. where it was, and still continues to be, used to compel the attendance of witnesses to attest the truth of facts and give testimony. Bishop Waltham merely added to the form of summons which had been previously used the words, "And this he shall in nowise omit, under the penalty [sub poena] of one hundred pounds." Although this innovation attracted great attention, it is said to be a matter of surprise that such importance was ever attached to it, or how it was supposed to have brought about so complete a revolution in equitable proceedings; for the penalty was not capable of being enforced, and, if the party failed to appear, his default was treated and punished, as probably it had been before, as a contempt of court, and an obedience coerced accordingly. In many jurisdictions, among which are Virginia and Illinois, the subpoena is termed a "summons in chancery"; while in others,-for example, in the federal courts and in Michigan,-the term "subpoena" is adopted. In each jurisdiction the statutes and rules of court should be consulted." 122. Frame of subpoena. It is usually required that the subpoena contain the names of all the defendants. The name of one of the complainants, addIn England the subpoena must ing "and others," is sufficient. Story, Eq. Pl. § 45. 64 Minor, Inst. Com. & St. Law (2d Ed.) 1228 (1112); 1 Spence, Eq. Jur. 369, 370, note (a); 3 Reeve, Eng. Law, 192. The provisions relative to subpoenas in chancery in the federal courts will be found in United States Equity Rules 5, 7, 11-16. Rule 12 provides that at the bottom of the subpoena shall be placed a memorandum that the defendant is to enter his appearance in the suit in the clerk's office on or before the day at which the subpoena is returnable; otherwise, that the bill may be taken as confessed. Rule 14 provides that, whenever any subpoena shall be returned not executed as to any defendant, the complainant shall be entitled to another subpoena, toties quoties, against such defendant, until due service is made. 1 Hoffman, Ch. Pr. 103; Barton, Suit in Eq. 65. Where the complainant wishes to make an unbaptized infant a party defendant, it seems that the subpoena should describe him as "the last-born child (161) be returnable in term, unless otherwise ordered upon motion or petition to the court; and it seems that it might be returnable the same day as it was sealed.10 The time when a subpoena shall be returnable in the various states is largely regulated by rule or statute.11 § 123. Form of subpoena. [In the federal courts:] United States of America. In the Circuit Court of the United States, Circuit, District of In Equity. The President of the United States of America, to R. S., V. W., and X. Y., Greeting: on You are hereby commanded that you be and appear in said circuit court of the United States aforesaid, at the court room in the day of A. D. 19-, to answer a bill of complaint exhibited against you in said court by A. B., who is a citizen of the state of , and to do and receive what the said court shall have considered in that behalf; and this you are not to omit, under the penalty of five thousand dollars. Witness the Honorable Melville W. Fuller, chief justice of the supreme court of the United States, this day of in the year and of our inde of our Lord one thousand nine hundred and pendence the [Seal.] L. M., Clerk. Memorandum pursuant to Rule 12, Supreme Court, U. S.-You are hereby commanded to enter your appearance in the above suit on or before the first Monday of next, at the clerk's office of said court, pursuant to said bill; otherwise, the said bill will be taken pro confesso. § 124. Service of process. L. M., The sheriff, as the ministerial officer of the court, is usually the proper officer to execute the service of process issued from of A. B. and C. D., his father and mother." 1 Barbour, Ch. Pr. 49; Eley v. Broughton, 2 Sim. & S. 188. 91 Hoffman, Ch. Pr. 103, 104; Gilbert, Forum Rom. 38. 10 1 Hoffman, Ch. Pr. 104; Hinde, Pr. 80. 111 Hoffman, Ch. Pr. 103. Equity Rule 12. See Rev. St. Ill. c. 22, § 9; United States 12 An alias subpoena is practically the same as the above, save that the court, provided he is not an interested party, or otherwise disqualified.13 When he is disqualified, the coroner is usually the proper officer to serve such process. The statutes, or rules of court, of the respective jurisdictions, generally provide by whom process shall be served, and should be consulted, when the occasion arises.14 It is a well-established rule that the process of a court cannot run beyond the territorial jurisdiction of the court issuing it.15 The service of a subpoena upon a defendant out of the state is irregular, and ineffective as personal service.18 Service may be made on any day, save those excepted at common law and by statute.17 Service on Sunday is usually held to be void.18 It seems that service on a return day before 12 o'clock at night will be valid, as the legal day does not close till that hour.19 A summons served after the return day does not give the court after the words, “you are hereby,” are inserted the words, “as you have heretofore been." See 4 Desty, Fed. Proc. (9th Ed.) 654-657. For form of writ of summons in Virginia, see 4 Minor, Inst. Com. & St. Law (2d Ed.) 1231 (1115). For form of subpoena in Michigan, see Michigan Chancery Rule 122. For form of subpoena under English chancery practice, see 1 Harrison, Ch. Pr. 296; Barton, Suit in Eq. 62; Mitford &T. Pl. & Pr. in Eq. 500. 13 Bacon Abr. tit. "Sheriff" (m) 1. 14 United States Equity Rule 15 provides for service by the marshal or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise. In the latter case the person serving the process shall make affidavit thereof. 15 United States v. American Lumber Co., 85 Fed. 827; Harkness v. Hyde, 98 U. S. 476. 161 Barbour, Ch. Pr. 51; Dunn v. Dunn, 4 Paige (N. Y.) 425; Cree v. Byrne, 1 Hogan, 79; Pratt v. Bank of Windsor, Har. (Mich.) 254. 17 Stone's Case, 129 Mass. 156. 181 Hoffman, Ch. Pr. 104; Mackreth v. Nicholson, 19 Ves. 367; State v. Ricketts, 74 N. C. 193. The statutes and decisions of the particular jurisdiction, for the effect of service of process on Sunday and legal holidays, should be consulted when occasion demands. See, for Sunday service, Hastings v. Columbus, 42 Ohio St. 585; Scammon v. City of Chicago, 40 Ill. 146. 191 Hoffman, Ch. Pr. 104; Maud v. Barnard, 2 Burrow, 812; 1 Barbour, Ch. Pr. 51. For consideration of this question, see 1 Hoffman, Ch. Pr. 104; Gilbert, Forum Rom. 42. |