§ 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of process issuing from the district courts were omitted as superseded by Rule 4(b) of the Federal Rules of Civil Procedure.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
Form of process
in federal actions generally, see Federal Civil Procedure 
404.
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.
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.
END OF DOCUMENT