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Beecher, 60 N. Y. 518, 527, 19 Am. Rep. 207; Youngs v. Lee, 12 N. Y. 551; Bank of Cooperstown v. Woods, 28 N. Y. 561, 566; Smith v. Whiting, 12 Mass. 6, 7 Am. Dec. 25; Housatonic Bank v.

, ; Laflin, 5 Cush. (Mass.) 546, 548; Cayuga County Bank v. Warden, 1 N. Y. 413, 417; Rochester Bank v. Gould, 9 Wend. 280.

In the cases cited for the plaintiff in error the dates of the notices and the dates therein named on which the demands and dishonors were averred were within a few days of the due dates of the respective pieces of paper, so that the indorsers might have inferred that the demands and presentments were made on the wrong days. But in the case before us the indorser knew that the certificate which he had indorsed was dated on January 25, 1904, that it was due on January 25, 1905, and that he received this notice a short time after the latter date. The notice was dated January 25, 1904, and stated that on that day the certificate was duly presented for payment and that payment was demanded and refused. Derham knew that this was a mistake, for he knew that the certificate was issued to him and that he himself had possession of it on that day. Thus he knew it could not have been presented on the day stated in the notice. He knew that it fell due on January 25, 1905, and that the purpose of this notice was to inform him of its presentment and dishonor. “A statement of nonpayment and notice,” says Mr. Justice Story in Mills v. United States Bank, "is, by necessary implication, an assertion of right by the holder, founded upon his having complied with the requisitions of law against the indorser.” It is plain that the mistake in the recital of the date of the certificate in the notice and its failure to contain the clause, “No interest after six months,” could not have misled Derham as to the identity of the paper, and there is no rational escape from the conclusion that by the terms of the notice and the necessary implication therefrom it sufficiently informed hini of the presentment, demand, and dishonor of the certificate on the day when it fell due.

The judgment below must accordingly be affirmed; and it is so ordered.

HOOK, Circuit Judge (specially concurring). I concur in the result in this case, and in what is said excepting as to the application of the Minnesota statute of amendments. Congress has prescribed a rule sufficient for the guidance of national courts in this particular.


(Circuit Court of Appeals, Eighth Circuit. July 10, 1907.)

No. 2,511.


Legal issues other than the one specifically presented for determination may properly be considered and determined by an appellate court, where they naturally arise and are pertinent to the question at issue and to further proceedings in the trial court.


The jurisdiction of a national court over a controversy once lawfully acquired includes the power to enforce its judgment or decree, and this power may not be destroyed or restrained by the legislation or lack of

legislation of the states. 3. SAME_WRIT OF SCIRE FACIAS TO REVIVE A JUDGMENT.

A Circuit Court of the United States has power to issue its writ of scire facias to revive its judgment and to prescribe a reasonable method of service thereof without the district where the judgment defendant has departed therefrom. Such power is derived from the Constitution and Rev. St. § 716 [U. S. Comp. St. 1901, p. 580], and cannot be restrain.

ed, limited, or rendered less efficacious by the statutes of a state. 4. SAME-MODE OF SERVICE.

The conformity act (Rev. St. 88 914, 915, 916 [U. S. Comp. St. 1901, p. 684]) empowers a Circuit Court to use a similar remedy to that provided by a state statute to enforce its judgments, but does not require it to follow the method prescribed by a state statute in serving a writ of scire facias to revive a judgment on a nonresident defendant if it deems such method insufficient.

[Ed. Note.-State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71, and Hill v. Hite, 29 C. C. A. 553.]

On Petition for Rehearing.
For former opinion, see 152 Fed. 414.
Clayton C. Dorsey and William V. Hodges, for the motion.
Before SANBORN, HOOK, and ADAMS, Circuit Judges.

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SANBORN, Circuit Judge. Counsel for Hughes have made a motion for a rehearing of this case upon four grounds: (1) That what is said in the opinion with reference to the practice upon a writ of scire facias to revive a judgment is obiter dictum; (2) that the use of the writ of scire facias to revive a judgment is abolished in Colorado, except in the manner prescribed by the statutes of that state; (3) that the method of service of the writ is prescribed exclusively by the statute of Colorado, and that it may not be otherwise served by the direction of the federal court to revive a judgment of that court in that state; and (4) that the service of the writ personally outside of the district of Colorado will not be due process of law under the decision in Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565.

1. What was said in the opinion upon the questions challenged was appropriate and logical in its relation to the decision of the actual issue presented, to wit, whether or not the order assailed in this case was a final order. While the

While the specific legal issues other than the latter question were not expressly presented for adjudication, they naturally arose and were properly considered in view of the condition of the case and the necessity of proper action by the court below.

2. The jurisdiction of a national court over a controversy once lawfully acquired includes the power to enforce its judgment or decree, and this power may not be destroyed or restrained by the legislation or lack of legislation of the states, because it is granted by the Constitution and the acts of Congress, which are the supreme law of the land. Barber Asphalt Pav. Co. v. Morris, 66 C. C. A. 55, 59, 132 Fed. 945, 949. The writ of scire facias to revive a judgment

is founded upon the statute of 2 Westminster, c. 45, enacted in the thirteenth year of Edward I, or the year 1285. A scire facias to revive a judgment is a continuance of the original action, and is not a new action. The practice under the common law in case the writ of scire facias could not be served upon the defendant was to render judgment of fiat executio upon two returns of nihil. But Chief Justice Beasley in delivering the opinion of the Supreme Court of New Jersey in Elsasser v. Haines, 52 N. J. Law, 10, 18 Atl. 1095, 1098, said, and it is a rational statement, that there is no substantial difference between the judgment fiat executio and the judgment quod recuperet. So that it does not seem to be material to notice the form which the judgment in the case at bar may take under the scire facias issued. In the eighteenth volume of the Encyclopedia of Pleading and Practice, at page 1055, the statement is made that scire facias to revive a judgment is the usual method unless another is provided.

In 1789 the Congress granted to the Supreme Court and the Circuit and District Courts of the United States the power to issue writs of scire facias. Rev. St. § 716 [U. S. Comp. St. 1901, p. 580]. In 1822 in Delano v. Jopling, 1 Litt. (Ky.) 118, 120, the Court of Appeals of Kentucky held that a judgment rendered in the state of Virginia on a scire facias against special bail upon two returns of nihil was entitled to full faith and credit in the state of Kentucky, and sustained an action for judgment upon it. That court said:

"A scire facias is styled a judicial writ, viz., a writ for the purpose of effectuating what has already been decided, or, in case of bail, to compel the bail to perform that which he hath solemnly undertaken of record; and the reason why the bail is summoned at all is out of abundant caution and tender regard to his rights, for the purpose of allowing him to show some matter which may have arisen since his undertaking, and which may exonerate him. Hence he is summoned to answer matters of record, and the judgment rendered of record after his undertaking, against his principal, is conclusive against him. There is therefore no necessity of taking the same care to bring him into court, in order to subject him to his undertaking, as there is with regard to defendants in original actions, where the matters in controversy are entirely en pais, and have never been settled or ascertained by judicial determination.”

In 1858, in Battey, Ex'r, v. Holbrook, Ye Mass. 212, the Supreme Judicial Court of that commonwealth decided that after judgment had been rendered against a defendant, and he had removed from the local jurisdiction of the court, the writ of scire facias might still issue, "for,” said the court, “the suit is in fact still pending in court, its remedy yet incomplete, and to be enforced as and when new breaches occur.

In 1840 one Comstock recovered a judgment in the Circuit Court of the United States for the District of Rhode Island in an action of debt in which the defendant had been duly served with process. In 1859 a writ of scire facias was sued out upon that judgment in Rhode Island, and was served personally upon the defendant in the state of Massachusetts, to which state he had moved and in which he was then residing. In 1860 an action was brought upon this second judgment in one of the trial courts of Massachusetts, and the plaintiff recovered. Upon a writ of error the Supreme Judicial Court of Massachusetts affirmed the judgment. It said:

“The scire facias was not a new action, but a continuation of the old one. Wright v. Nutt, 1 T. R. 389. It was indeed necessary that notice thereof should be given to the defendant before judgment thereon could legally be rendered. But, as the law prescribed no form of notice to a defendant out of the district where the court was held, it was for the court to cause such notice to be given as should be reasonable and enable him to appear and defend his rights. The notice given to the defendant was actual, personal, and seasonable, and though it was not in any form which had been ordered by the court, and was not proved by a return of an officer of the court, as such officer, but by his affidavit, yet it was adopted by the court as sufficient; and the judgment thereafter rendered must be deemed valid, and this action thereon be sustained. The Circuit Court could not be ousted of its jurisdiction by the absence of the defendant from the district in which the action was pending." Comstock v. Holbrook, 82 Mass. 111, 113.

In this state of the law and the practice the territory of Colorado in the year 1861 enacted a statute to the effect that the common law of England and all acts and statutes of the British Parliament prior to the fourth year of James I, of a general nature and not local to that kingdom, should be the rule of decision and be considered in full force until repealed by legislative authority. 2 Mills' Ann. St. § 4181. There can be no doubt that, under the common law, the foregoing statutes and decisions, and the established practice, the Circuit Court of the United States had power to issue its writ of scire facias and to prescribe a reasonable method of service thereof without the district of the court where a defendant in a judgment had departed from its district. In 1877. the Legislature of Colorado provided that a judgment in a civil action might be revived by filing a petition, issuing an order to show cause and serving it on the defendant in the same manner as summonses were required to be served in civil actions. Mills’ Ann. Code, $8 241–244.

$8 241–244. The statutes of Colorado also provided that a summons in a civil action might be served by publication where the defendants were not residents. Mills' Ann. Code, §. 41. At the time of the issue of this scire facias there was a rule of the court below in force in the district of Colorado, to the effect that:

"Writs of execution and other final process issued on judgments and decrees rendered in this court and the proceedings thereon had shall be the same, except their style, as are now or may be hereafter used in the highest court of original and general jurisdiction in this state.”

But this rule is not controlling in the issue and service of writs of scire facias because they are not writs of execution or other final process, nor are they proceedings thereon had, and, even if the rule were applicable, it would still be within the power of the court below to vary its process and its manner of service by order so as to attain the ends of justice.

It will be perceived from the statutes and decisions' which have been cited that the power to issue the writ of scire facias and to serve it in such manner as the court below deemed wise and reasonable was vested in that court prior to the Colorado act of 1877 and that no additional power was granted by that act.

In Elsasser v. Haines, 52 N. J. Law, 10, 18 Atl. 1095, Chief Justice Beasley, in an exhaustive and learned opinion which he delivered in the year 1889 for the Supreme Court of New Jersey, expressed the opinion of that court that a judgment upon two returns of nihil upon a scire facias issued in the state of Pennsylvania upon a bail bond was according to the course of the common law and of the law of that state, and was conclusive in the state of New Jersey and the action upon it was sustained.

Counsel insist that this proceeding by scire facias cannot be sustained, and they cite in support of their view Humiston v. Smith, 21 Cal. 129, 135, Cameron v. Young, 6 How. Prac. (N. Y.) 372, Hughes v. Shreve, 60 Ky. 547, and De Baca v. Wilcox, 68 Pac. 922, 923, 11 N. M. 346, decisions which hold that the writ of scire facias to revive a judgment is abolished in these various jurisdictions by the provisions of their codes that there shall be one form of civil action. It is enough to say in answer to these opinions that they do not apply to suits or proceedings in the national courts, that this court has previously expressed a different opinion, and that its view has been sustained by the Supreme Court. U. S. v. Insley, 51 Fed. 221, 223, 4 C. C. A. 296, 298; Insley v. U. S., 150 U. S. 512, 14 Sup. Ct. 158, 37 L. Ed. 1163. The same conclusion was earlier adopted in England. 2 Coke's Inst. 472. In Brown v. Wygant & Leeds, 163 U. S. 618. 16 Sup. Ct. 1159, 41 L. Ed. 284, the Supreme Court held that two returns of nihil constituted sufficient service upon a resident of a state.

There are decisions cited by counsel which determine other questions, but none have been brought to our attention which hold that a Circuit Court may not issue and direct the manner of service of a writ of scire facias upon its own judgment so as to warrant it in entering a judgment of revivor thereon. In Owens v. Henry, 161 U. S. 642, 16 Sup. Ct. 693, 40 L. Ed. 837, however, the Supreme Court decided that a judgment upon two returns of nihil in the state of Pennsylvania upon a scire facias to revive a judgment of a court of that state would not sustain an action upon the revived judgment in the state of Louisiana when the original judgment had become barred by the statute of the latter state. The court held that, if the scire facias was a new action, there was no sufficient service because the defendant was a resident of Louisiana at the time of the returns and had received no notice, and that, if it was a continuance of the original action, the effect of the judgment of revivor was to keep in force the local lien in the state of Pennsylvania, and that it did not have the effect to remove the bar of the statute of limitations in the state of Louisiana. In Bickerdike v. Allen, 157 111. 95, 41 N. E. 740, 29 L. R. A. 782, may be found a decision that the service of a writ of scire facias issued upon a judgment in another state upon a resident of the state of Illinois by publication in the other state would not sustain an action upon the judgment of revivor rendered thereon in the state of Illinois under the doctrine of Pennoyer v. Neff, 95 U: S. 714, 24 L. Ed. 565. And there is an opinion in Weaver v. Boggs, 38 Md. 255, that a judgment of revivor on two returns of nihil in the state of Pennsylvania will not sustain an action upon the judg

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