Peaslee v. Haberstro

19 F. Cas. 71, 15 Blatchf. 472, 1879 U.S. App. LEXIS 2063

• Court: U.S. Circuit Court for the District of Northern New York
• Decided: January 21, 1879
• Status: Published

Opinion

WALLACE, Circuit Judge.

The motion to set aside the summons in this action must be granted, upon the ground that the summons was not signed by the clerk or under the seal of the court. Section 911 of the Revised Statutes of the United States prescribes, that “all writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof.” This provision is not inconsistent with, and, therefore, is not repealed by, the subsequent act of congress (Act June 1, 1S72. 8 5; 17 Stat. 197), now. embodied in section 914 of the Revised Statutes, which enacts, that “the practice, pleadings and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit of district courts are held.” Giving due effect to the later act, the practice, and forms and modes of proceeding, in the courts of the United States, in common law actions, is to conform to, and be regulated by, that of’the state courts, when there is no statute of the United States prescribing different practice or forms or modes of procedure. When the statutes of the United States aré silent, the practice of the state courts will prevail, but, when those statutes speak, they are controlling. If the summons in this case had been signed by the clerk, it could be amended as regards the seal. As it is, there is no summons in the nature of process known to this court. The summons is set aside.