George R. CHOATE, Appt.,

v.

Almon SPENCER et al., Respts.

(........Mont.........)

1. A summons issued without the seal of the court is void and can give no jurisdiction, where the statute provides that it "must be issued under the seal of the court," although the statutes also provide that the court shall disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.

2. A decision of the Supreme Court of the United States is binding on the state court in a case which arose under territorial laws before the state was admitted to the Union.

(March 20, 1893.)

Anonymous, 1 P. Wms. 523; Martin v. Kerridge, 3 P. Wms. 240; Etna Ins. Co. v. Hallock, 73 U. S. 6 Wall. 556, 18 L. ed. 948.

This decision of the United States Supreme Court is controlling upon this court in the determination of this question.

Franklin County, 81 U. S. 14 Wall. 15, 20 L. ed. Sullivan v. Helena, 10 Mont. 143; Steines v. 846; York v. Texas, 137 U. S. 15, 34 L. ed. 604; Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565; Delmas v. Merchants Mut. Ins. Co. 81 U. S. 14 Wall. 661, 20 L. ed. 757.

The summons in Sullivan v. Choate was void in that it was issued without the seal of the district court.

Hall v. Jones, 9 Pick. 446; Ex parte Smith, 15 Pick. 446; Witherel v. Randall, 30 Me. 170; Bybee v. Ashby, 7 Ill. 151, 43 Am. Dec. 47; Tibbetts v. Shaw, 19 Me. 204; Boals v. King,

the District Court for Meagher County in favor of defendants in an action brought to quiet title to certain real estate. Reversed.

The facts are stated in the opinion. Messrs. Thompson & Maddox, for appellant:

By the ancient common law, all process emanating from courts of record was authenticated by the seal of the court. That one thing gave character to the document. Without it the writ was void.

Am. Rep. 552; Bailey v. Smith, 12 Me. 196; Porter v. Haskell, 11 Me. 177; Com. v. Stockbridge, 11 Mass. 279; Woolford v. Dugan, 2 Ark. 131, 35 Am. Dec. 52.

The absence of the seal was not an amendable defect.

Bailey v. Smith, Tibbetts v. Shaw, and Witherel v. Randall, supra.

As a court of equity may impose just terms in granting relief, the decree may direct the cancellation upon condition of repayment being

In criminal cases.

A warrant from a justice of the peace should be under the hand and seal of the justice. 2 Hale, P. C. 111; Coke, 2 Just. 52; 4 Bl. Com. 290; Comyn, Dig. Imp. H. T.; Welch v. Scott, 27 N. C. 72. น

And a warrant issued by a magistrate without being under seal is void. Tackett v. State, 3 Yerg. 892, 24 Am. Dec. 582; State v. Drake, 36 Me. 366.

This case (36 Me. 366) reviewed State v. McNally, 84 Me. 210, 56 Am. Dec. 650, holding that 34 Me. 210, showed there was a seal, which case holds that a magistrate's warrant issued on a penal statute need❘ not be under seal unless the statute expressly requires it. Rev. Stat., chap. 170, § 15, provided that a search warrant should be under seal, but the Statute of 1851, under which this case arose, simply provided for a warrant of search, omitting the phrase "under seal." The court held that under the statutes of Maine a justice of the peace had no seal of office, but a wafer was attached in this case which could be called a seal.

A warrant not under seal was held not to justify an officer attempting to arrest and the accused who resisted and beat the officer was acquitted. State v. Curtis, 2 N. C. 471.

But in Davis v. Clements, 2 N. H. 390, a warrant of arrest from a justice of the peace was not required to be under seal unless required under the statutes.

And while a seal was necessary on a magistrate's warrant, and the lower court held that a scrawl was his seal, which was an adjudication of a fact, this could not be reversed by the supreme court which tried errors of law. State v. Worley, 33 N. C. 242.

A warrant of commitment must be under the seal of the court. Goodrich v. United States, 42 Fed. Rep. 392; Jennings v. State, 13 Kan. 80.

And a search warrant not under seal gives the

Holcomb, 3 Park, Crim. Rep. 656.

A warrant issued by a justice of the peace under New York Stat., pt. 4, chap. 2, title 1, § 5, providing that all process issued by any justice of the peace shall be signed by him and may be under seal or without seal, is valid if there is no seal thereon. Gano v. Hall, 5 Park. Crim. Rep. 651.

This is a contrary view of the same statute considered in People v. Holcomb, supra.

Where a complaint and warrant was on the same paper and the seal between them, it will be held to be on the warrant which purports to be under seal. State v. Coyle, 33 Me. 427.

A venire for a jury must be under the seal of the court. People v. McKay, 18 Johns. 212; State v. Lightbody, 38 Me. 200.

And an indictment must be under seal of the court and cannot be cured by amendment or by special statute. State v. Flemming, 66 Me. 142, 22 Am. Rep. 552.

On a forfeited recognizance, a writ of scire facias must be under the seal of the court. Besimer v. People, 15 Ill. 441.

But under 12 Car. II., chap. 24, fol. 25, authorizing warrants under the "hands" of justices of the peace, the warrant need not be under seal. A distinction is made where the act requires the warrant to be under their "hands and scals." Padfield v. Cabell, Willes, 411.

And an action of slander may be maintained for assigning perjury in taking out a warrant though not under seal. Bell v. Farnsworth, 11 Humph, 608.

So in Aylesbury v. Harvey, 3 Lev. 204, in an action of replevin for goods seized under the excise laws, it was held that the statute under which the warrant was issued did not require the warrant to be under the hand and seal but only to be in writing.

As to statutory requirements.

The Alabama Statute, § 2653, giving the form of a

1 Story. Eq. Jur. §§ 693, 696, 707; Thomas ▼. Beals, 154 Mass. 51.

Messrs. F. N. & S. H. McIntire, for respondents:

The later decisions and the weight of recent authorities hold that the omission of the seal from, or the putting of the wrong seal upon, process, is a defect of form merely, and not of substance, does not render the process void; and the process is amendable at any stage of the proceedings, even after judgment and sale upon execution.

Jump v. McClurg, 35 Mo. 193, 86 Am. Dec. 146; Parsons v. Swett, 32 N. H. 87, 64 Am. Dec. 352; Murdough v. McPherrin, 49 Iowa, 479; Talcott v. Rosenberg, 8 Abb. Pr. N. S. 287; Dever v. Akin, 40 Ga. 429; Corwith v. State Bank, 18 Wis. 560, 86 Am. Dec. 793; Sabin v. Austin, 19 Wis. 421; People v. Dunn ing, 1 Wend. 16; Dominick v. Eacker, 3 Barb. 17; Arnold v. Nye, 23 Mich. 286; Bridewell v. Mooney, 25 Ark. 524; Hunter v. Burnsville Turnp. Co. 56 Ind. 213; Purcell v. McFarland, 23 N. C. 34, 35 Am. Dec. 734; Rose v. Ingram, 98 Ind. 276; Boyd v. Fitch, 71 Ind. 306; State v. Davis, 73 Ind. 359; Taylor v. Courtnay, 15 Neb. 190; Warmoth v. Dryden, 125 Ind. 355; Logan v. Hillegass, 16 Cal. 202; Shawhan v. Loffer, 24 Iowa, 217; Freem. Executions, § 46; Freem. Judgm. § 126; Black, Judgm. § 223; Ind. Rev. Stat. 1881, 314.

After judgment and an opportunity to ap

summons, and § 2882, giving the form of an execution, do not provide for the use of seal.

Brewer v. Sibley, 13 Met 175; Foot v. Knowles, 4 Met. 386.

The court has control of its process, and may order the summons to be amended at any time.

Polock v. Hunt, 2 Cal. 194; Pierse v. Miles, 5 Mont. 549.

Choate's remedy, if any, after judgment, was to move to set aside the judgment, or to bring an action for that purpose.

Logan v. Hillegass, 16 Cal. 202; Hauswirth v. Sullivan, 6 Mont. 203; Foster v. Hauswirth, 5 Mont. 566.

There is no claim that Choate had a meritorious defense to the original suit of Sullivan nor was any valid tender of the amount of the debt ever made by Choate to the respondents, or any of them, nor was the amount of the debt ever deposited in court by Choate. No showing whatever is made that would justify a court of equity in canceling the sheriff's deed. For these reasons the amended complaint is insufficient and the demurrer was properly sustained. Ibid.

Pemberton, Ch. J., delivered the opinion of the court:

This is a suit to quiet title to certain mining property, situated in Meagher county, and described in the complaint. The ap

In New York, under Code Civ. Proc., § 24, a writ or other process is not void or voidable by reason

So under Illinois Crim. Code, pt. 2, div. 18, § 210. In California an execution should be under seal (Code, § 682), but a scroll or sign recognized in another state will be recognized in California. Two forms are given for warrant in the Penal Code, section 814, for preliminary examination omits the seal, while section 1427 for trial before the magistrate gives a form under seal.

In Connecticut under Gen. Stat., § 1085, instruments from officers not having seals containing the words under "seal" or "L. S." shall be the same as though under seal.

The Indiana statute (Code, § 1627) provides a form of warrant with "(seal) " and § 1683 provides also for seal to the warrant.

Under Iowa Crim. Code, § 5570, giving a form for warrant for preliminary examination, and § 6063, giving a form of warrant for trial, do not refer to seals.

In Kansas, under Taylor's Stat., § 148, all courts of record shall have a seal to authenticate process, and under § 6687 where a seal is required it may be impressed on the paper alone without wax.

Under Mass. Pub. Stat. 1882, p. 922, civil actions except those founded on special writs shall be commenced by original writs, signed, sealed, and bearing teste.

In Michigan, under How. Ann. Stat., § 7048, process from a justice of the peace may be with or without seal.

take or omission in the teste therein or in the name of the clerk, unless it was issued by special order of the court.

And under Civil Code, § 3135, the mandate from a justice's court may be without seal. But under § 1992, state writs, such as habeas corpus, certiorari, mandamus, and proceedings to assess damages, must be under seal.

The seal of the court may be by impression. N. Y. Code, § 29.

Under Ohio Rev. Stat., § 4954, process from court must be under the seal of the court.

In Texas process of court shall be under seal of the court, having an impression of the seal thereon. Texas Civ. Stat. § 1443.

In West Virginia, under Code, chap. 115, clerks of the courts are required to have seals, but may use scrolls for seals until seals are provided.

In Wisconsin the Statute, $$ 3581-3584, 4774, giving the form of commitment from a justice of the peace, and 8 1081, providing for a tax warrant, do not indicate a seal to be used; but under § 2730 a writ of attachment must be under seal.

As to summons.

The summons provided by the code in some of the states, not being issued by an officer of the court but furnished by the attorney, is not a writ or "process" indicated in the constitution, and does not have to be under seal. Porter v. Vandercook, 11 Wis. 70: Johnston v. Hamburger, 13 Wis. 175;

Under Neb. Comp. Stat. 1891, p. 964, process of courts is to be under seal.

New Jersey Rev. Stat. 1877, p. 540, provides that process, warrants, and writs from a justice court must be sealed by the justice.

Or. 71: Gilmer v. Bird, 15 Fla. 411; Rand v. Pantagraph, 1 Colo. App. 270.

A notice is not a process under the Constitution of Iowa. Nichols v. Burlington & L. C. Pl. Road Co. 4 G. Greene, 44.

Under the California Code, § 407, requiring that a

pellant, who was plaintiff below, alleges in his complaint that on the 16th day of July, 1888, he was, and is now, seised and possessed of an estate of inheritance in and to the mining claim described therein; that the respondents, who were defendants below, arc tenants in common with him in and to said property, but dispute appellant's title to the same; that on the 17th day of July, 1888, the appellant was indebted to one Jere Sullivan in the sum of $208.32; that on said last mentioned day the said Sullivan commenced suit against him to recover judgment for such indebtedness in the district court of the then fourth judicial district of the territory of Montana, in and for Choteau county, and that on said last-mentioned day the said Sullivan procured to be issued, under the hand of the clerk of said court, a certain paper, purporting to require this appellant to appear and answer said complaint; that said paper or pretended summons did not contain or bear in any place or part thereof the seal of said district court, but, on the contrary, bore the impression of the seal of the probate court of said Choteau county; that on the 21st day of July, 1888, there was served upon the appellant a copy of said pretended summons in Meagher county, in the territory of Montana, without the seal of said district court; that no summons issued out of said district court, and authenticated by the seal of said court, was ever served on the appellant; that appellant never appeared in said court at any

time to answer said complaint; that said pretended summons, so served upon the appellant, was returned and filed with the clerk of said court on the 25th day of July, 1888; that thereafter, on the 5th day of November, 1888, the default of the appellant was entered in said court, and final judgment entered in said court against the appellant in said cause; that said pretended summons was the only means by which said court ever attempted to acquire jurisdiction of said appellant; and, as such, was the only basis for the judgment entered in said court against appellant in said cause; that on the 4th day of June, 1889, an execution issued out of said district court upon said pretended judgment, directed to the sheriff of Meagher county, who levied the same on the property of the appellant, (described in the complaint herein, and on the 5th day of July, 1889, said sheriff sold said property to satisfy said pretended execution; that Timothy E. Collins et al. purchased said property at said pretended sale, that thereafter said Collins and others transferred their certificate of purchase of said property to the respondents, and that on the 13th day of January, 1890, the said sheriff executed and delivered a sheriff's deed to said property to the respondents, which deed was duly recorded in the office of the recorder of said county of Meagher; that said property was sold for the sum of $122.86, but was of a much greater value, to wit, of the value of $30,000; that said respondents, at the time

A slight impression after years will be presumed to be a seal. Heighway v. Pendleton, 15 Ohio, 755, It will be presumed that writs of attachment were under the seal of the court where they are lost and are called in question in an action of replevin. McNorton v. Akers, 24 Iowa, 369.

Under Kansas C. L. 1862, chap. 68, § 4, providing that the clerk of the district court could use a private seal where none is provided, the use of private seals having been abolished by C. L. chap. 38, § 5, a

the writ will be affirmed. (But see Re Farr, 41 Kan. 276.) Goff v. Russell, 3 Kan. 212.

A writ that is issued, signed, and sealed in blank does not avoid the service. Miller v. Hall, 1 Speers, L. 1.

Blanks issued for service in a case should not be used in another case by changing the names. Lyford v. Bryant, 38 N. H. 88; Eastman v. Morrison, 46 N. H. 135.

And where the writ was issued on a blank for another court baving a wafer thereon and nothing to show as the seal of this court, it could not be deemed to be under the seal of this court and should be quashed. Dearborn v. Twist, 6 N. H. 46. See infra, Amending writs.

The usage of a wafer by the court as its seal on a fi. fa. will be sustained. Barton v. Keith, 2 Hill, L.

537.

And a citation is not invalid where the seal has fallen off, and the service thereof is good. Baldwiu v. Merrill, 44 Me. 55.

And any seal affixed by the clerk to the writ as the seal of the court is sufficient where no form is provided for, nor required, and it is immaterial whether a blank writ be signed by the clerk or his Bignature be annexed thereto by his order. Stevens v. Ewer, 2 Met. 74.

The teste should refer to the seal as being attached by the clerk, and the mere presence of the seal does not prove that it was placed there by the clerk. The writ was quashed and the suit dismissed where the attesting clause was, "Witness, F. S., clerk of our said court at B, this (Seal)

Attest: F. S., Clerk, Dist. Ct. "J Co. lowa." But the converse is held in Morrison v. Silverburgh, 13 Ill. 551, that a capias under the seal of the court need not have on it the certificate by the clerk that he actually affixed the seal. Riggs v. Bagley, 2 G. Greene, 383.

Under Ind. Rev. Code 1831, p. 407, allowing all instruments to which a seal is necessary to be sealed with a scrawl, the circuit court may adopt a scrawl a its seal and an execution with that kind of a seal will be sustained although it would not be good at common law. Dixon v. Doe, 5 Black f. 106.

The contrary was held under Ind. Stat., § 194, of the Tax Laws, authorizing the county clerk to make a certificate of the tax judgment attested by the seal of the court which shall be a process on which the property shall be sold, deciding that the clerk could not substitute a private scrawl for the official seal, and holding the tax sale void. Hinton v. Brown, 1 Blackf. 429.

But a summons issued under a private seal of the

tion that the summons under discussion was void for want of the seal of the court is Etna Ins. Co. v. Hallock, 73 U. S. 6 Wall. 556, 18 L. ed. 948. This case went to the Supreme Court of the United States, from Indiana, and involved the validity of a deed executed and delivered by a sheriff to real estate, under an order of sale, under a statute of that state. The statute required the order of sale to be issued under the seal of the court. The seal was omitted from the order of sale. In delivering the opinion of the court, Mr. Justice Miller says: "If the paper here called an order of sale is to be treated as a writ of execution or fieri facias issued to the sheriff, or as a process of any kind issued from the court, which the law required to be issued under the seal of the court, there can be no question that it was void, and conferred no authority upon the officer to sell the land. The authorities are uniform that all process issuing from a court which by law authenticates such process with its seal is void if issued without Counsel for plaintiffs in error have not cited a single case to the contrary, nor have our own researches discovered one. We have decided in this court that a writ of error is void for want of a seal, though the clerk had returned the transcript in obedience to the writ. We have held that a bill of exceptions must be under the seal of the judge.

a seal.

But a writ of habeas corpus issued by a judge under the sign manual of the officer authorized to issue the same is as effectual as under seal. Re Blair, 4 Wis. 522.

The New York statute has dispensed with a seal in civil and criminal courts in some instances, and a plea in trespass for taking property under a tax warrant, that alleges a warrant issued without saying "under seal" does not negative but what it was under seal. The use of the term "warrant" implies that it was under seal. Beckman v. Traver, 20 Wend. 67.

A tax warrant need not be under seal unless so required by statute. Davis v. Clements, 2 N. H. 390. And seals are not now required to warrants of district trustees under South Carolina Stat. 1841, p. 241, § 21, but were required when the tax warrant in this case issued, but the renewal of a warrant not under seal by issuing one under seal is valid. Smith v. Randall, 3 Hill, 495.

As to judicial writs under seal.

A sheriff is liable for money collected by his deputy, on an execution not under seal. People v. Dunning, 1 Wend. 17.

But in Hutchins v. Edson, 1 N. H. 139, a sheriff was held not liable for an escape where the execution is not under seal, as the constitution provides that all writs shall be under seal.

An execution under seal is presumed to have been issued by order of court. Bryant v. Johnson, 24 Me. 304.

A plea that the fi. fa. was not under seal is bad, in a suit to enforce a judgment. Dever v. Aken, 40 Ga. 423; Warmoth v. Dryden, 125 Ind. 355.

Contrary to these cases it is held that an execution not under seal is void. Roseman v. Miller, 84 Ill. 297; Bybee v. Ashby, 7 Tl. 151, 43 Am. Dec. 47; Atna Ins. Co. v. Hallock, 73 U. S. 6 Wall. 556, 18 L. ed. 948; Boals v. King, 6 Ohio, 11.

And an order of commitment for failure to disclose property recovered in replevin, is a process and must be under seal. Re Farr, 41 Kan. 276.

A commission to take testimony out of the

This was a collateral attack made upon the deed executed by the sheriff, under the order of sale from which the seal had been omitted. Counsel for the respondents contend that the case just cited is not controlling, and claim that the Indiana courts have declined to fol. low the rule therein asserted, and cited a number of Indiana cases in support of their position. From an examination of the Indiana cases cited by respondents, we are of opinion that the departure from the rule asserted in Etna Ins. Co. v. Hallock, supra, has been occasioned by the legislation in Indiana since the decision in 6 Wall. In support of this view, we quote from State v. Davis, 73 Ind. 360, this case being cited by respondents. In this case the court says: "It is undoubtedly true, as appellees insist, that at common law a writ issuing from a court must, in order to be entitled to be considered as regular and authentic, be attested by the seal of the court from which it issued. Williams v. Vanmeter, 19 I11. 293; State v. Flemming, 66 Me. 142, 22 Am. Rep. 552; Wheaton v. Thompson, 20 Minn. 196; Reeder v. Murray, 3 Ark. 450. The case of Etna Ins. Co. v. Hallock, 73 U. S. 6 Wall. 556, 18 L. ed. 948, decides that an order of sale issued by a court of this state was void because not attested by the seal of the court. It has also been held by this court that, where there is no statute to the contrary,

county must be under seal, in North Carolina. Freeman v. Lewis, 27 N. C. 91.

But the omission of a seal in the appointment of an assignee by a master in chancery for an insolv. ent cannot be taken advantage of in a suit by such assignee, as Mass. Stat. 1838, chap. 163, § 5, provides that the assignment made to the assignee by the judge shall be conclusive evidence of authority to sue. Partridge v. Hannum, 2 Met. 569.

In Van Duzee v. United States. 41 Fed. Rep. 571, it was held that the clerk should authenticate under seal copies of orders for the payment by the marshal of sums due jurors and witnesses.

The contrary is held in Singleton v. United States, 22 Ct. Cl. 118, on the ground that the marshall is an officer of the same court. This doctrine was presented in the case of Van Duzee, supra, but considered untenable.

As to amending process and writs where the seal has been omitted.

A summons or writ without seal is amendable by attaching the seal thereto. Strong v. Catlin, 3 Pinney, 121, 3 Chandler, 130; Gullett v. Otey, 19 Ill. App. 182; State v. Davis, 73 Ind. 359. (This case on the ground that a summons that imparts notice is valid under § 37 of the Indiana Code.)

A writ of replevin may be amended by adding the seal under N. C. Rev. Stat. chap, 58, § 1, authorizing the court to amend any process either in form or substance at any time before judgment. Clark v. Hellen, 23 N. C. 421.

An original writ without seal was held not amendable. Witherel v. Randall, 30 Me. 168; Foss v. Isett, 4 G. Greene, 76, 61 Am. Dec. 117. (But see next case.)

In Hallett v. Chicago & N. W. R. Co., 22 Iowa, 259, 92 Am. Dec. 393, the service of an affidavit on an agent, as required by Iowa Act 1862, chap. 169. where stock was killed, may be amended on the trial so as to have the jurat of the affidavit show that it was under seal, where the jurat does not re

fer to the seal.

An execution may be amended by having the