1691. Seal and teste of process

 

All writs and process issuing from a court of the United States shall be under the seal of the court and signed by the clerk thereof.

 

CREDIT(S)

 

1994 Main Volume


(June 25, 1948, c. 646, 62 Stat. 945.)

<General Materials (GM) - References, Annotations, or Tables>

 

HISTORICAL AND STATUTORY NOTES

 

Revision Notes and Legislative Reports

 

1948 Acts. Based on Title 28, U.S.C., 1940 ed., 721 (R.S. 911; Mar. 3, 1911, c. 231, 291, 36 Stat. 1167).

 

Provisions as to teste of process issuing from the district courts were omitted as superseded by Rule 4(b) of the Federal Rules of Civil Procedure. Provision for teste of the Chief Justice of writs and process was omitted as unnecessary.

 

A provision requiring the United States to bear the expense of providing seals was omitted as unnecessary and obsolete.

 

Changes were made in phraseology. 80th Congress House Report No. 308.

 

Immunity from Seizure under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display

 

Presidential determination of cultural significance of objects and exhibition or display thereof in the national interest, see section 2459 of Title 22, Foreign Relations and Intercourse.



CROSS REFERENCES

 

Assistance, attachment, or sequestration, see Fed.Rules Civ.Proc. Rule 70, 28 USCA.

 

Execution, see Fed.Rules Civ.Proc. Rule 69, 28 USCA.

 

Habeas corpus, see 28 USCA 2241.

 

Injunction, see Fed.Rules Civ.Proc. Rule 65, 28 USCA.

 

Power of courts to issue writs, see 28 USCA 1651.

 

Power of Supreme Court to prescribe rules of procedure and evidence, see 28 USCA 2072.

 

Subpoenas, see Fed.Rules Civ.Proc. Rule 45, 28 USCA.

 

Summons, Process, see Fed.Rules Civ.Proc. Rule 4, 28 USCA.

 

Writs of scire facias and mandamus abolished, see Fed.Rules Civ.Proc. Rule 81, 28 USCA.

 

Writs venire facias abolished, see 28 USCA 1867.

 

LIBRARY REFERENCES


American Digest System

Form of process in federal actions generally, see Federal Civil Procedure Key Number graphic404.



Encyclopedias

Form of process in federal actions generally, see C.J.S. Federal Civil Procedure 188.

 

30 Am. Jur. 2d, Executions and Enforcement of Judgments (1994) 100, 101.

 

62B Am. Jur. 2d, Process 72, 75.



Forms

Issuance and requisites of writ, see West's Federal Forms 5184 Comment.



Texts and Treatises

28 Fed. Proc. L Ed, Process 65:53, 122.

 

4A Fed. Proc. L Ed Banking and Financing 8:1038.

 

8 Fed. Proc. L Ed, Creditors' Provisional Remedies 21:19.

 

8 Fed. Proc. L Ed Creditors' Provisional Remedies 21:24.

 

NOTES OF DECISIONS

 

Generally 1 

 

Arrest warrants, writs and process within section 3 

 

Attachments, writs and process within section 4 

 

Commitment, writs and process within section 5 

 

Copies 12 

 

Deputy clerk's signature, writs and process within section 11 

 

Effect of failure to comply 13 

 

Habeas corpus, writs and process within section 6 

 

Notices of motion, writs and process within section 7 

 

Search warrants, writs and process within section 8 

 

Summons, writs and process within section 9 

 

Venditioni exponas, writs and process within section 10 

 

Waiver 14 

 

Writs and process within section 

 

Writs and process within section - Generally 2 

 

Writs and process within section - Arrest warrants 3 

 

Writs and process within section - Attachments 4 

 

Writs and process within section - Commitment 5 

 

Writs and process within section - Deputy clerk's signature 11 

 

Writs and process within section - Habeas corpus 6 

 

Writs and process within section - Notices of motion 7 

 

Writs and process within section - Search warrants 8 

 

Writs and process within section - Summons 9 

 

Writs and process within section - Venditioni exponas 10 


  

1. Generally

 

Former 721 of this title [now this section], applied only to writs and processes issuing from the courts themselves. In re Condemnation Suits by U.S., E.D.Tenn.1916, 234 F. 443.

 

Former 721 of this title [now this section], meant no more than that when a writ or process issued from a federal court it had to be signed by the clerk, and had to be authenticated in the manner therein set out. Leas & McVitty v. Merriman, C.C.W.D.Va.1904, 132 F. 510.

 

All writs and processes issuing from the courts of the United States had to be signed by the clerk of the court from which they issued, and be under the seal of the court from which they issued. Middleton Paper Co. v. Rock River Paper Co., C.C.W.D.Wis.1884, 19 F. 252. See, also, U.S. v. Sharrock, D.C.Mont.1921, 276 F. 30.

 

2. Writs and process within section--Generally

 

The word "process," as used in former 721 of this title [now this section], meant an order of court, although it could be issued by the clerk. Leas & McVitty v. Merriman, C.C.W.D.Va.1904, 132 F. 510.

 

The process of the court in its narrowest sense meant the writ and mandates of the court under the seal thereof, and in this sense it was used in former 721 and 722 of this title [now this section and rule 4, Federal Rules of Civil Procedure]. U.S. v. Murphy, D.C.Del.1897, 82 F. 893.

 

"Process" is a term sufficiently broad to include all writs. U.S. ex rel. Corsetti v. Commanding Officer of Camp Upton, U.S. Army, E.D.N.Y.1944, 3 F.R.D. 360.

 

3. ---- Arrest warrants

 

A United States commissioner, like a justice of the peace, was not obliged to have a seal, and his warrants might be under his hand alone and former 721 of this title [now this section], did not apply to such commissioner. Todd v. U.S., U.S.Ala.1895, 15 S.Ct. 889, 158 U.S. 278, 39 L.Ed. 982. See, also, Starr v. U.S., Ark.1894, 14 S.Ct. 919, 153 U.S. 614, 38 L.Ed. 841.

 

A warrant of arrest for preliminary examination had to be under seal as required by former 721 of this title [now this section]. Clough v. U.S., C.C.W.D.Tenn.1891, 47 F. 791, appeal dismissed 12 S.Ct. 989, 145 U.S. 658, 36 L.Ed. 858, modified on other grounds 55 F. 373, 5 C.C.A. 140.

 

4. ---- Attachments

 

A warrant of attachment, against a vessel, came which the requirements of former 721 of this title [now this section]. Bowler v. Eldredge, Conn.1846, 18 Conn. 1.

 

5. ---- Commitment

 

Warrant of commitment was defective because not under seal. Ex parte Sprout, C.C.Dist.Col.1807, 22 F.Cas. 1010, 1 Cranch C.C. 424, No. 13267, 1 D.C. 424. See, also, Ex parte Bennett, C.C.Dist.Col.1825, 2 Cranch, C.C. 612, 3 Fed.Cas. No. 1,311.

 

6. ---- Habeas corpus

 

Where permission is given by a judge for the issuance of a writ of habeas corpus, it should be issued under the seal of the court and attested by the clerk of the court. Ex parte Craig, C.C.A.2 (N.Y.) 1922, 282 F. 138, certiorari granted 43 S.Ct. 90, 260 U.S. 714, 67 L.Ed. 477, affirmed 44 S.Ct. 103, 263 U.S. 255, 68 L.Ed. 293.

 

7. ---- Notices of motion

 

Federal District Court in Virginia was not precluded from applying Virginia practice of beginning suit by notice of motion for judgment instead of writ, under former 724 of this title although former 721 of this title [now this section], required all writs and processes issuing from courts of United States to be under seal of court and signed by clerk, since notice of motion was not a "process issuing from a court" and was not a "writ". Chisholm v. Gilmer, U.S.Va.1936, 57 S.Ct. 65, 299 U.S. 99, 81 L.Ed. 63, rehearing denied 57 S.Ct. 229, 299 U.S. 623, 81 L.Ed. 458.

 

Notice of motion for judgment under Virginia statute takes place of writ and declaration, and was not "writ" or "process" within former 721 of this title [now this section], requiring seal of court and signature by clerk and such notice was sufficient under former 724 of this title. Eley v. Gamble, C.C.A.4 (Va.) 1935, 75 F.2d 171.

 

Notices given by the parties were not processes of the court and were not embraced within the terms of former 721 of this title [now this section], and hence in any proceeding which could be properly instituted and proceeded with upon mere notice to the parties interest, without process from the court itself, as in condemnation proceedings, the requirements of such section had no application. In re Condemnation Suits by U.S., E.D.Tenn.1916, 234 F. 443.

 

Former 721 of this title [now this section], did not apply to a notice given under a state law authorizing a judgment on a contract to be obtained on motion after fifteen days' notice to defendant, and the practice thereunder, which was for the plaintiff or his attorney to sign the notice and serve the same on defendant, such a notice not being a "process issuing from the court." Leas & McVitty v. Merriman, C.C.W.D.Va.1904, 132 F. 510.

 

A garnishment notice was not such a "process" of the court as had to conform to the requirements of former 721 of this title [now this section]. Wile v. Cohn, C.C.S.D.Iowa 1894, 63 F. 759, affirmed 70 F. 138, 17 C.C.A. 25.

 

8. ---- Search warrants

 

Assuming that order allowing Internal Revenue Service agents to enter residence of taxpayer's husband in order to seize property in satisfaction of tax liability was a writ and process within meaning of statute providing that all writs and process issuing from court of United States shall be under seal of court and signed by clerk thereof, statutory requirements were met and order was valid, although husband was not presented with original order itself where copy was signed by clerk and attested to. Matter of Campbell, C.A.6 (Mich.) 1985, 761 F.2d 1181.

 

Search warrant issued by United States commissioner need not have been attested in the name of the President and former 721 of this title [now this section], did not apply to such commissioner's writs. Gray v. U.S., C.C.A.9 (Cal.) 1925, 9 F.2d 337.

 

9. ---- Summons

 

A summons issuing out of the former United States circuit court, under the seal of the court, and signed by the clerk, as required by former 721 of this title [now this section], was not objectionable because it was wholly in the handwriting of plaintiff's attorney, excepting the signature of the clerk. Jewett v. Garrett, C.C.N.J.1891, 47 F. 625.

 

A summons must issue from the court and be sealed with the seal of the court. Dwight v. Merritt, C.C.S.D.N.Y.1880, 4 F. 614.

 

A summons in a common-law action in the federal circuit court in New York was within former 721 of this title [now this section]. Peaslee v. Haberstro, C.C.N.Y.1879, 19 F.Cas. 71, No. 10884.

 

10. ---- Venditioni exponas

 

The signing of a venditioni exponas by a deputy clerk in his own name, and the want of the signature of the clerk himself, was an irregularity only, and did not avoid the writ and proceedings under it. Griswold v. Connolly, C.C.La.1871, 11 F.Cas. 59, No. 5833. See, also, Bragg v. Lorio, C.C.La.1871, 1 Woods 209, 4 Fed.Cas. No. 1,800.

 

11. Deputy clerk's signature

 

Inasmuch as all writs and processes issuing from a court of the United States are required by statute, to be under seal of court and signed by clerk thereof, an injunction signed only by deputy clerk of district court is not void for want of a judicial signature. Scanbe Mfg. Co. v. Tryon, C.A.9 (Cal.) 1968, 400 F.2d 598.

 

12. Copies

 

As the original writ had to be issued under the seal of the court, a copy of it, of course, could only be certified by the clerk, who was custodian of the seal, who alone could issue the writ, and who had charge of and made the record authorizing its issuance. Taylor v. U.S., C.C.E.D.Tenn.1891, 45 F. 531, reversed on other grounds 13 S.Ct. 479, 147 U.S. 695, 37 L.Ed. 335.

 

13. Effect of failure to comply

 

Judgment creditor was not entitled to judgment of condemnation based upon failure of judgment debtor's employer to answer interrogatories set forth in writ of attachment directed to employer, where writ was not under seal and thus was defective. Miles v. Gussin, Bkrtcy.D.Dist.Col.1989, 104 B.R. 553.

 

14. Waiver

 

An objection to the teste of a writ of injunction was waived where not made until in the brief filed in the Supreme Court. Union Tool Co. v. Wilson, U.S.Cal.1922, 42 S.Ct. 427, 259 U.S. 107, 66 L.Ed. 848.



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