service was obtained by fraud, will not prejudice proceedings regularly taken under this statute.13 Where the publication was duly made, the premature entry of a decree before the statutory time for answer had expired is an irregularity which does not make the decree void or subject to collateral attack.14 No personal judgment can be entered against a defendant who does not appear.15 But such a clause in a judgment although void does not invalidate so much as affects the title to the property.16 This statute does not change the law as to the difference of citizenship essential to jurisdiction.17 It has been doubted whether it can be applied to a suit removed from a State court. 18 Compliance with State statutes providing for service upon nonresidents, by publication 19 or by attachment,20 will not give a Federal court jurisdiction either in law or equity except in a case which has been removed when the Federal Court will continue the jurisdiction acquired by publication under the State statute provided that is due process of law.21 State statutes are void which authorize a judgment against a nonresident or absentee on five days notice,22 or personal judgment upon publication against a person who has left the State with the intention not to return.23 Y.) 380, a judgment against W. B. Gottlieb was enforced by an action in another State against William B. Gottlieh. In White v. McClellan, 62 Md. 347, that the omission of a middle initial of a party's name did not invalidate the notice; and in Fanning v. Krapfl, 61 Iowa, 417; S. C., 68 Iowa, 544, 14 N. W. 727, 16 N. W. 293, 26 N. W. 133, and Buchanan v. Roy's Lessee, 2 Ohio St. 257, that the publication was sufficient where the names were incorrectly spelled but they were accompanied by another description which made the identification clear. 13 Fitzgerald & M. C. Co. v. Fitzgerald, 137 U. S. 98, 34 L. ed. 608. 14 Sheffey v. Davis Colliery Co., 219 Fed. 465. In the State courts judg 15 Albert v. Bascom, 245 Fed. 149. 16 Andes v. Highland Land & Building Co., C. C. A., 205 Fed. 862. 17 Tug River Coal & Salt Co. v. Brigel, 67 Fed. 625. 18 Adams v. Heckscher, 80 Fed. 742, 744. 19 Bracken v. Union Pac. Ry. Co., C. C. A., 75 Fed. 347; s. c., 56 Fed. 447. 20 U. S. v. Brooke, 184 Fed. 341. 21 Hudson Nav. Co. v. Murray, 236 Fed. 419. 22 Roller v. Holly, 176 U. S. 398. 23 McDonald V. Mabee, March, 1917, 243 U. S. 90, 37 Sup. Ct. 343. ments by substituted service of process against residents temporarily absent from the State have been sustained.24 An order of a Federal Court for such service is, when attacked collaterally, at least prima facie evidence of the existence of the jurisdictional facts.25 Upon a motion to vacate the order for substituted service, the sufficiency of the bill may be considered and the order vacated, where the bill shows no cause for relief in equity; although the subject matter is within the statute.26 It has been held: that the order for service may be set aside as to part of the bill and left in force as to the remainder.27 The right of the defendant to appear and defend within a year is absolute.28 It is not lost because he had knowledge of the proceedings.29 The court cannot impose any other condition than that prescribed by the statute, namely, the payment of costs.30 An order requiring the application to show a meritorious defense to the bill is erroneous.31 Where the defendants, who have been served by publication, appear and defend upon the merits, the suit is converted from a proceeding in rem to a suit in personam.32 The Act of June 29, 1906, which authorizes proceedings to cancel certificates of citizenship, provides: "If the holder of such certificate be absent from the United States or from the district in which he last had his residence, such notice shall be given by publication in the manner provided for service of summons by publication or upon absentees by the laws of the State or the place where such suit is brought." 33 In the eastern district of Louisiana, it was held to be sufficient 24 Huntley v. Baker, 33 Hun (N. Y.) 578; Grubel v. Nassauer, 210 N. Y. 149. But see Raher v. Raher, 150 Iowa 511; Nicholas v. Vaughan (Mass.), 105 N. E. 376. 25 Woods v. Woodson, C. C. A., 100 Fed. 515. 26 Canton Roll & Machine Co. v. Rolling Mill Co., 155 Fed. 321; Gage v. Riverside Trust Co., 156 Fed. 1002. 27 Evans V. Charles Scribner's Sons, 58 Fed. 303. 28 Perez v. Fernandez, 220 U. S. 224, 55 L. ed. 443. 29 Ibid. 30 Ibid. 31 Ibid. 32 Beamer v. Werner, C. C. A., 159 Fed. 99. See Ingersoll v. Coram, 136 Fed. 689, 692, 693; affirmed 211 U. S. 335, 53 L. ed. 208, which reversed C. C. A., 148 Fed. 169. 33 Ch. 3592 § 15, 34 St. at L. 596, 601, Comp. St. Supp. 1909, p. 485. to serve the notice upon an attorney-at-law, appointed curator ad hoc to represent an absentee, without publication.34 § 167. Exemptions from service of subpoena or other process, legal or equitable, other than arrest. Chief Justice Marshall, in the course of the trial of Aaron Burr, ordered that a subpæna duces tecum should issue against President Jefferson. Jefferson, however, refused to obey the subpoena, while expressing his perfect willingness to furnish the paper desired, if requested in what he considered a proper way. The dispute went no farther.1 Subsequently, a motion was made for leave to file a bill in the Supreme Court, praying for an injunction against President Johnson to restrain him from executing the reconstruction laws. The Attorney-General then took the position that the President was not amenable to process; but that point was not then and has not since been decided.2 On the trial of Guiteau for the murder of President Garfield, a written statement signed by President Arthur was admitted in evidence, by consent without his personal attendance.3 No other officer or person has claimed to be above the law. 734 U. S. v. Ellis, 185 Fed. 546. § 167. 1 Burr's Trial. 2 Mississippi v. Johnson, 4 Wall. 475, 18 L. ed. 437. See Jefferson's Works, vol. v, p. 102. 3 Guiteau's Trial, 741, 896. In Coler v. Brooklyn Eagle, New York Supreme Court (Kings County), the plaintiff requested President Roosevelt to give his testimony. The following answer was received: "Hon. Bird S. Coler; The President of the United States does not testify in court nor does he give evidence by deposition. Wm. Loeb, Jr., Secretary." Plaintiff then applied for an order to show cause why a com mission should not issue. plication was denied by Thomas, J., as follows: "The order to show cause is denied for the following reasons: First, the papers do not show that the evidence sought relates to the plaintiff. This is tech His ap nical. Second, the Executive of a sovereign nation may, with the highest right and dignity, decide whether he will lay aside his official duties to become a witness in the court of another jurisdiction and if the evidence pertain to his duties as a Governor of a State some eight years earlier his refusal to testify would be doubly justified. In the present instance, through his secretary, he has made a statement tantamount to such refusal and the issuance of a commission would be a useless if not indecorous act, inasmuch as he is the Commander-inChief of the army and navy of the United States, and in effect paramount executive authority in the District of Columbia, and his refusal could not and should not be gainsaid. The law and its history may be found in the appeal of Hartranft 85 Penn. 433, 27 Amer The Federal Constitution provides that Senators and Representatives "shall in all cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same." This has been construed at circuit to exempt them from service of process, unaccompanied by arrest of the person, when on their way to attend a session of Congress; and it has been further held that such exemption is not lost by a slight deviation from the most direct road to the capital. In a State court the privilege has been extended to members of a Constitutional Convention.7 5 In certain cases individuals are temporarily exempt from the service of process. A person temporarily and voluntarily within the district for the purpose of attending, in a State or Federal 9 court, either as witness,10 or as party,11 or as attorney, or coun ican Reporter 667. See also Rice V. Austin 19 miscellaneous 103.'' (N. Y. Sun, February 10, 1909.) 4 Const., art. I, § 6. 5 Miner v. Markham, 28 Fed. 387. 6 Miner v. Markham, 28 Fed. 387. 7 Bolton v. Martin, 1 Dallas, 296, 1 L. ed. 144. 8 Juneau Bank v. McSpedan, 5 Biss. 64; Matthews v. Tufts, 87 N. Y. 568. 9 Parker v. Hotchkiss, 1 Wall, Jr. 269; U. S. v. Bridgman, 8 Am. L. Rec. 541; Brooks v. Farwell, 2 McCrary, 220; s. c., 4 Fed. 167; Bridges v. Sheldon, 7 Fed. 17; Matthews V. Puffer, 10 Fed. 606; Larned v. Griffin, 12 Fed. 590. 10 Stewart v. Ramsay, 242 U. S. 128; Person v. Grier, 66 N. Y. 124, 23 Am. Rep. 35, and cases there cited; Kauffman v. Kennedy, 25 Fed. 785. A non-resident voluntarily came to another jurisdiction to plead to an indictment against him, under which he might have been compulsorily removed, and on the same day was served with a subpœna requiring him to testify be fore a Grand Jury on a specified date. He then appeared and testified and was directed, without serv ice of further process, to reappear eight days later. He then again attended and was not asked to testify further, but was privately interro gated by an assistant district attorney, and while leaving the Federal Building was served with a summons in a civil action brought in the State court. After removal of the case, the Federal court set aside the summons. Dwelle v. Allen, 193 Fed. 546. The Appellate Division of the New York court held subsequently to the contrary. Dwelle v. Allen, 151 App. Div. (N. Y.) 717. 11 Parker v. Hotchkiss, 1 Wall. Jr. 269; Juneau Bank v. McSpedan, 5 Biss. 64; Matthews v. Tufts, 87 N. Y. 568; Brooks v. Farwell, 2 McCrary, 220; s. c., 4 Fed. 167; Bridges v. Sheldon, 7 Fed. 17; Matthews v. Puffer, 10 Fed. 606; Larned v. Griffin, 12 Fed. 590; Read v. Neff, 207 Fed. 890; Stewart v. Ramsay, 242 U. S. 128; Smith v. Govern sel 12 a trial 13 or other proceedings,14 civil or criminal,15 including the argument of a demurrer, 16 or attendance before a coroner's jury,17 or a referee in bankruptcy 18 or to have his deposition taken 19 or to attend the hearing of a motion; 20 is, while there, exempt from the service of process eundo, morando, et redeundo.21 The officer of a corporation which is a party is entitled to the same privileges as if he were a party himself.22 Service upon a foreign corporation by delivering the process to its secretary while attending court as a witness in the corporation's litigation is invalid.23 A similar exemption would probably be applied to any person while temporarily within the district in the discharge of a public duty. The privilege of a ment of Canal Zone, 249 Fed. 273; Diamond v. Earle (Mass.), May, 1914, 105 N. E. 363. A service of process, made upon a party attending specially the trial of a case in another State, was set aside by a Federal court, although the suit was begun in a court of the State whose courts held such service good. Holt v. Wharton, C. C. A., 73 Fed. 392. But see Skinner & Mounce Co. v. Waite, 155 Fed. 828. 12 Matthews v. Tufts, 87 N. Y. 568. 13 Read v. Neff, 217 Fed. 890; contra, Robbins v. Lincoln, 27 Fed. 342; Coleman v. Tim, 18 W. N. C. Pa. 240; Greenleaf v. Bank, 133 N. C. 292, 49 S. E. 638, 63 L.R.A. 499, 98 Am. St. Rep. 709; Nelson v. McNulty (Minn.), January, 1917, 160 N. E. 795; Kutner v. Hodnett, 59 Misc. (N. Y.) 21, per Hendrick, J.; Paul v. Stuckey (Ark.), 189 S. W. 676, L.R.A. 1917 B. 888. See Hoffman v. Bay Circuit Court, 113 Mich. 109, 71 N. W. 480, 38 L.R.A. 663, 67 Am. St. Rep. 458. 14 U. S. v. Bridgman, 8 Am. Law Record. 541; Newton v. Askew, 6 Hare, 319; Matthews v. Tufts, 87 N. Y. 568; Parker v. Marco, 136 N. Y. 585, 20 L.R.A. 45, 32 Am. St. Rep. 770; Stratton v. Hughes, 211 Fed. 557 (hearing upon an application to revoke a license). But see Jaster v. Currie, 198 U. S. 144, 49 L. ed. 988. 15 U. S. v. Bridgman, 8 Am. L. Rec. 541. But see Jenkins v. Smith, 57 How. Pr. (N. Y.) 171. 16 Kims v. Lant, 68 Fed. 436. 17 Feister v. Hulick, 228 Fed. 821; Morrow v. U. H. Dudley & Co., 144 Fed. 441; Peet v. Fowler, 170 Fed. 618; U. S. v. Zavelo, 177 Fed. 536. 18 Re Smith Const. Co., 224 Fed. 228; Powell v. Pangborn, 161 App. Div. (N. Y.) 453. 19 Central Ry. Signal Co. v. Jackson, 238 Fed. 625. 20 Smith v. Government of Canal Zone, C. C. A., 249 Fed. 273. 21 Stewart v. Ramsay, 242 U. S. 128; Diamond v. Earle (Mass.), May, 1914, 105 N. E. 363. 22 Am. Woodenware Co. v. Stein, 63 Fed. 676; Powell v. Pangborn, 161 App. Div. (N. Y.) 453. 23 American Woodenware Co. v. Stem, 63 Fed. 676. 24 Lyell v. Goodwin, 4 McLean, 29; Nichols v. Horton, 14 Fed. 327; 4 McCrary, 560. But see Fitzhugh v. Reid, 252 Fed. 234. |