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their Authority; - to all Cases affecting Ambassadors, other public Ministers and Consuls; - to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; - to controversies between two or more States; tween a State and Citizens of another State; - between Citizens of different States, between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

[2] In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

It is to be noted that the Constitution makes express provision for a Supreme Court, although it makes no provision as to the number of justices who may be appointed, and that it gives to the Congress power to establish inferior courts. By the Judiciary Act of 17891 the Congress provided for the establishment of district courts and circuit courts. By a statute enacted in 18912 the Congress created Circuit Courts of Appeals, and later the circuit courts were abolished. Today, therefore, there are district courts, Circuit Courts of Appeals, and the Supreme Court. In each state there is at least one district court, and in many of the states there are several districts. In many of the districts there are several district judges. Moreover, as need requires, judges may be assigned temporarily to hear cases in other districts.

The United States is now divided into ten judicial circuits, with a Circuit Court of Appeals in each of the circuits. From a judgment or decree of a district court, a case can be carried to the appropriate Circuit Court of Appeals. This court is normally composed of three circuit judges. Congress has, however, provided for a very flexible system of judicial administration in the federal courts under which circuit judges may sit in the district courts and district judges may sit in the Circuit Courts of Appeals. Indeed, it is provided that the justices of the Supreme Court may sit in these lower courts. At one time this was quite usual, but now only former justices who have retired from the Supreme Court actually sit in the lower federal courts.

The jurisdiction of the federal courts rests upon the provisions of Article III, Section 2, of the Constitution of the United States which is quoted above. It will be noticed that the jurisdiction may depend

1 Act of Sept. 24, 1789, 1 Stat. 73. See Frankfurter and Landis, The Business of the Supreme Court (1928) 11-12.

2 Act of March 3, 1891, 26 Stat. 826.

3 Judicial Code of March 3, 1911, § 289, 36 Stat. 1087, 1167.

upon the character of the controversy, or it may depend upon the
character of the parties to the controversy. The most important
illustration of the former is those cases which involve a federal ques-
tion. The most important illustration of the latter is those cases
which involve a controversy between citizens of different states.2
If the federal courts have jurisdiction over a controversy, the
plaintiff may bring his action in a federal court. If the plaintiff
brings his action in a state court, the defendant can, subject to the
rules laid down by the Congress, remove the case into a federal
court. Where the state courts and the federal courts have concur-
rent jurisdiction, and a case is brought in the state court and is not
removed to a federal court, it will proceed to judgment in the state
court. If the case involves a federal question, the decision of the
state court on that question is subject to review by the Supreme
Court of the United States, under the restrictions imposed by Acts
of Congress.*

In suits in equity in the federal courts and in admiralty proceedings the procedure has always been uniform throughout the United States, being regulated by Rules of the Supreme Court. The procedure in the federal courts in actions at law was, however, until 1938 regulated by the so-called Conformity Act which provided 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 or district courts are held, any rule of court to the contrary notwithstanding."

All this is changed, however, by an Act of Congress of June 19, 1934,6 and the Rules promulgated by the Supreme Court pursuant thereto. This Act provides as follows:

Be it enacted. . . That the Supreme Court of the United States shall have the power to prescribe, by general rules, for the district courts of the United States and for the courts of the District of

1 There is a vast amount of learning as to what constitutes a federal question. The matter is dealt with in the course on Jurisdiction and Procedure of the Federal Courts.

2 There is also a vast amount of learning on this subject, likewise dealt with in the course on Jurisdiction and Procedure of the Federal Courts.

3 For a brief statement of these rules, see Morgan, Introduction to the Study of Law (1926) 21.

4 The most important of these is the Judiciary Act of 1925, 43 Stat. 936. 5 Rev. Stat. (1878) § 914, 28 U. S. C. § 724. The Conformity Act was originally enacted June 1, 1872, 17 Stat. 197.

8 48 Stat. 1064, 28 U. S. C. §§ 723b-723c.



Columbia, the forms of process, writs, pleadings, and motions, and the practice and procedure in civil actions at law. Said rules shall neither abridge, enlarge, nor modify the substantive rights of any litigant. They shall take effect six months after their promulgation, and thereafter all laws in conflict therewith shall be of no further force or effect.

Sec. 2. The court may at any time unite the general rules prescribed by it for cases in equity with those in actions at law. so as to secure one form of civil action and procedure for both: Provided, however, That in such union of rules the right of trial by jury as at common law and declared by the seventh amendment to the Constitution shall be preserved to the parties inviolate. Such united rules shall not take effect until they shall have been reported to Congress by the Attorney General at the beginning of a regular session thereof and until after the close of such session. On June 3, 1935, the Supreme Court by order determined to prescribe Rules of Civil Procedure applicable both to actions at law and to suits in equity, and on January 3, 1938, such rules were promulgated. They became effective September 16, 1938.2

4. The state courts. The organization of the courts in each state is regulated by constitutional provisions or statutes of that state. In some of the states the organization is comparatively simple; in others it is quite complicated. The student will find it worth his while to examine the constitution and statutes of his own state. It is sufficient here to say that in each state there will be found certain inferior courts of limited jurisdiction; one or more superior courts of general jurisdiction; and finally a single court, of appellate jurisdiction. In addition there is frequently a court or courts of intermediate appeal. The names given to the various courts differ in different states. The highest court is usually called the Supreme Court of the state. In some states, as in New York, it is called the Court of Appeals.3 In New Jersey it is called the Court of Errors and Appeals. In Massachusetts it is called the Supreme Judicial Court, to distinguish it from the legislature which is called the General Court."

1 See Mississippi Publishing Corp. v. Murphree, 66 S. Ct. 242 (U. S. 1946). 2 See 3 Moore's Federal Practice (ed. Moore and Friedman, 1938) § 86.01. Proposed amendments to these rules will soon be submitted to the Supreme Court. See Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945).

3 The Supreme Court of New York is the superior court of general jurisdiction, and the Appellate Divisions thereof are the principal courts of intermediate appeal.

4 See also Morgan, Introduction to the Study of Law (1926) 24-26, which includes a brief description of the courts of the state of New York.





It is of importance that the student should at the outset have a general view of the steps in an action at law, before he proceeds to study in detail each of these steps. Each case which he studies has gone through many, if not all, of the successive stages, although the reported decision may involve primarily one of these stages. Moreover, it is difficult to know anything about one of the steps in an action at law without some general knowledge of all of the steps, since each is related to the others.

1. Service of process. The first step in an action at law involves the subjecting of the defendant to the jurisdiction of the court in which the action is brought. This jurisdiction is ordinarily acquired by the service of process upon the defendant. The form of process is different in different jurisdictions. In England at common law it was, ordinarily necessary to obtain an original writ from the office of the Chancellor, rather than a judicial writ issuing from the court in which the action was brought. In many of the American states, the writ is obtained from the clerk of the court in which the action is brought. In some states the process which is served upon the defendant is not a writ issuing from a court, but is in the form of a notice signed by the plaintiff's attorney. In some jurisdictions the process is directed to the sheriff, ordering him to serve the defendant. In other jurisdictions the writ is directed to the defendant, ordering him to appear in the action. There is no single practice as to the service of the process upon the defendant. In some jurisdictions it is read to him by the person making the service, whereas in others a copy of the process is handed to him. In some jurisdictions the service must be made by a public officer, a sheriff or deputy sheriff or marshal or constable. In others service may be made by any person other than the plaintiff himself. All these matters are matters of detail, although the rules in force in the particular jurisdiction as to the form of process and the methods of its service must be carefully followed if the service is to be wholly effective. It is important, however, to note that some form of service upon the defendant is essential to give the court jurisdiction over him and to give him no

tice of the action and an opportunity to defend himself. The action. cannot proceed against the defendant without the service of process upon him, unless, indeed, he waives service, as, for example, by entering a general appearance in the action.

Ordinarily it is necessary to serve the defendant personally with process within the boundaries of the state in which the action is brought. If the defendant is personally present within the state and process is there served upon him, the court acquires jurisdiction over him, though he is not a resident of the state, and even though he merely happens to be passing through the state. It is true that on grounds of public policy a nonresident may be privileged to be exempt from service of process, as for example where he has come into the state for the purpose of giving testimony in a judicial proceeding; as indeed he is also privileged where he has been induced to enter the state by the fraud of the plaintiff or been brought within the state by force. Ordinarily, however, his personal presence within the state when the service is made upon him is sufficient.

Even though the defendant is not personally served with process within the state, jurisdiction may be acquired over him. A state has jurisdiction over its own residents although they are for the time being outside the boundaries of the state. By statute it is commonly provided that service may be made upon a resident of the state even though he cannot be found within the state. The relation of the resident to the state is such as to furnish a basis for the exercise of jurisdiction over him, and if the method of service prescribed by the statute is one which is reasonably calculated to give him notice of the action brought against him and an opportunity to be heard, the plaintiff may proceed in the action against him and recover judgment even though he does not appear in the action. Such statutes commonly provide for service at the defendant's place of abode; the statutes sometimes provide in the alternative for other methods of service, or leave it to the court to direct the method of service.

Whether jurisdiction can be acquired over the defendant in other ways than by personal service within the state, or by some substituted form of service where he is a resident of the state, or by his consent, is a matter which will be dealt with hereafter.1

Although a court cannot render a valid judgment against the defendant personally unless it has jurisdiction over him, it may render a judgment affecting interests in property if it has jurisdiction over the property. In other words, although it has no jurisdiction to render a judgment in personam, it may have jurisdiction to render a judgment in rem or quasi in rem. For example, a proceeding may be brought against a defendant by an attachment of his property within the state, and even though the court has no jurisdiction over the person of the defendant, it may order that the property be sold

1 See Ch. VIII, infra.

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