[301] be taken at the earliest opportunity. The above | prejudiced by his action, it is damnum absque inrule must be taken with the qualification that juria. [No. 196.] it is competent for the court to grant the relief In Wylie Y. Coxe, 58. U. S. 15 How: 415, 420 [14: 753, 755], it is said: "The want of jurisdiction, if relied on by the defendants, should have been alleged by plea or answer. It is too late to raise such an objection on the hearing in the appellate court, unless the want of jurisdiction is apparent on the face of the bill." It was held in Lewis v. Cocks, 90 U. S. 23 Wall. 466 [23: 70], that if the court, upon looking at the proofs, found none at all of the matters which would make a proper case for equity, it would be the duty of the court to recognize the fact and give it effect, though not raised by the pleadings nor suggested by counsel. To the same effect is Oelrichs v. Spain, 82 U. S. 15 Wall. 211 [21:43]. The doctrine of these and similar cases is, that the court, for its own protection, may prevent matters purely cognizable at law from being drawn into chancery, at the pleasure of the parties interested; but it by no means follows, where the subject matter belongs to the class over which a court of equity has jurisdiction, and the objection that the complainant has an adequate remedy at law is not made until the hearing in the appellate tribunal, that the latter can exercise no discretion in the disposition of such objection. | Under the circumstances of this case, it comes altogether too late even though, if taken in limine, it might have been worthy of attention. The decrees are reversed at the costs of Fry, trustee, in this and the Circuit Court and the cause remanded for further proceedings in conformity with this opinion. Reversed. v. HENRY AMY ET. AL., Plffs. in Err., THE CITY OF WATERTOWN. (No. 1.) (S. C. Reporter's ed. 301-320.) Service of summons on city, when not sufficient-charter-statutory method of service must be followed-construction of state statute-resignation of officer. 1. Where the charter of a city requires service of a summons to be on the mayor of the city, and there is no mayor in office, service on the last mayor who has resigned and whose resignation has taken effect, is not sufficient. 2. A charter of a city, which provides that its officers shall hold their offices until their successors are elected and qualified, does not apply in case of resignation, especially where the law applicable to the city provides for their resignation. IN ERROR to the Circuit Court of the United States for the Western District of Wiscon sin, to review an order setting aside a judgment on the ground that the summons was not properly served, and that consequently the Court had no jurisdiction. Affirmed. The facts are stated in the opinion. Mr. George P. Miller for plaintiffs in error. Messrs. Geo. W. Bird and Daniel Hall, for defendant in error: The construction put upon statutes by the supreme court of the State will be adopted and followed by the United States Courts. Leffingwell v. Warren, 67 U. S. 2 Black, 599 (17: 261); Luther v. Borden, 48 U. S. 7 How. 40 (12: 581); Burgess v. Seligman, 107 U. S. 20 (27: 359); Bucher v. Cheshire R. Co. 125 U. S. 555 (31: 795). Where there is no appearance, jurisdiction can be acquired only by service of process in the manner prescribed by law. Hollingsworth v. Barbour, 29 U. S. 4 Pet. 466 (7:922); Pennoyer v. Neff, 95 U. S. 714 (24: 565); Harkness v. Hyde, 98 U. S. 476 (25: 237); St. Clair v. Cox, 106 U. S. 350 (27: 222); Alexandria v. Fairfax, 95 U. S. 774 (24: 583); Kibbe v. Benson, 84 U. S. 17 Wall. 624 (21: 741); Sacramento v. Fowle, 88 U. S. 21 Wall. 119 (22: 592); Settlemier v. Sullivan, 97 U. S. 444 (24: 1110); Evans v. Dublin & D. R. Co. 14 Mees. & W. 142; Walton v. Universal Salvage Co. 16 Mees. & W. 438; Towne v. London & L. Steamship Co. 5 C. B. N. S. 730; Mackreth v. Glasgow & S. W. R. Co. 42 L. J. N. S. Exch. 82; Garton v. Great Western R. Co. 27 L. J. N. S. Q. B. 375; Brydolf v. Wolf, 32 Iowa, 509; Lambert v. Sam ple, 25 Ohio St. 336; Hoen v. Atlantic & P. R. Co. 64 Mo. 561; Dixon v. Hannibal & St. J. R. Co. 31 Mo. 409; First Nat. Bank v. Wilson, 80 N. C. 200; Cherry v. North & S. R. Co. 59 Ga. 446; Michigan State Ins. Co. v. Abens, 3 III. App. 488; Ill. & M. Teleg. Co. v. Kennedy, 24 Ill. 319; St. Louis etc. R. Co. v. Dawson, 3 Ill. App. 118; Neewlove v. Woodward, 9 Neb. 502; Scorpion S. Min. Co. v. Marsano, 10 Nev. 370; Chambers v. King W. 1. Bridge Manufact ory, 16 Kan. 270; Lake Shore & M. S. R. Co. v. Hunt, 39 Mich. 469; American Exp. Co. v. Conant, 45 Mich. 642; Union Pac. R. Co. v. Miller, 87 Ill. 45; Helms v. Chadbourne, 45 Wis. 60; Lehigh Valley Ins. Co. v. Fuller, 81 Pa. 398; People v. Bernal, 43 Cal. 385; Brisbane v. Peabody, 3 How. Pr. 109; Williams v. Van Valkenburg, 16 How. Pr. 144; Likens v. McCormick, 39 Wis. 313. Nor is this strictness enforced against corporations only. It maintains equally against individuals. 3. Where a particular method of serving process substituted. 4. In the construction of a state statute, in a matter purely domestic, this court will give great weight to the decisions of the highest tribunals of the State. 5. Although the officer of a city upon whom process is to be served may have resigned from an Improper motive, and although the plaintifa are Louis, 14 Mo. 190; Settlemier v. Sullivan, 97 U. S. 444 (24: 1110): Patterson v. Busby, 5 Mees. & W. 521; Rehmstedt v. Briscoe, 55 Wis. 616. Where there are two officers with like powers and duties, the Legislature having designated 302] one of them, the process must be delivered to Charleston v. Lunenburgh, 21 Vt. 488; Fair- Where the meaning of a statute is plain it is the duty of the court to enforce it, according to its obvious terms. In such a case there is no necessity for construction. Edwards v. Darby, 25 U. S. 12 Wheat. 206 (6: 603); U. S. v. Temple, 105 U. S. 97 (26: 967); Swift &C. & B. Co. v. U. S. 105 U. S. 695 (26: 1109); Ruggles v. Ill. 108 U. S. 526 (27: 812). Mr. Justice Bradley delivered the opinion of the court: The principal question in this case is, whether the defendant, the City of Watertown, was served with process in the suit so as to give the court below jurisdiction over it. In order to understand the bearing of the facts of the case, it will be necessary to give a brief abstract of the laws of Wisconsin which relate to it, and [303] these are mostly to be found in the charter of the City of Watertown and the Acts supple mentary thereto. The state laws are referred to because they govern the practice of the federal courts in the matter under consideration. By the 5th section of the Act of June 1, 1872 (R. S. § 914), it is declared 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." Were it not for this statute, the circuit courts themselves could prescribe, by general rule, the mode of serving process on corporations as well as on other persons. By the temporary Process Act of September 61 1828 were extended to the States admitted in This review of the statute shows, that after But the Statute of 1872 is peremptory, and whatever belongs to the three categories of practice, pleading, and forms and modes of proceeding, must conform to the state law and the practice of the state courts, except where Congress itself has legislated upon a particular subject and prescribed a rule. Then, of course, the Act of Congress is to be followed in preference to the laws of the State. With regard to the mode of serving mesne process upon corporations and other persons, Congress has not laid down any rule; and hence the state law and practice must be followed. There can be no doubt, we think, that the mode of service of process is within the categories named in the Act. It is part of the practice and mode of proceeding in a suit. Assuming, therefore, that the question is one to be governed by the local or state law, we proceed to give an abstract of the charter of Watertown, and such other laws of Wisconsin as bear upon the subject. We find this mostly made to our hand in the brief of the plaintiffs in error, taken from the consolidated charter of 1865, and it is as follows: Chapter 1, section 3. "The said city shall be divided into seven wards." Section 4. "The corporate authority of said city shall be vested in one principal officer, styled the mayor, in one board of aldermen, consisting of two members from each ward, who, with the mayor, shall be denominated the common council. Section 5. "The annual election for ward and city officers shall be held on the first Tuesday of April of each year. Section 6. Section 7. "In the event of a vacancy in Chapter 2, section 2. "The mayor, when present, shall preside over the meetings of the [305] common council, and shall take care that the laws of the State and the ordinances of the city within the corporation are duly enforced and observed, and that all officers of the city discharge their respective duties. He shall appoint the police force. . . . He shall have a vote in case of a tie only. Section 3. "At the first meeting of the common council in each year, or as soon thereafter as may be, they shall proceed to elect, by ballot, one of their number president; and in the absence of the mayor the said president shall preside over the meeting of the common council, and during the absence of the mayor from the city, or his inability from any cause to discharge the duties of his office, the president shall execute all the powers and discharge all the duties of mayor. In case the mayor and president shall be absent from any meeting of the common council, they shall proceed to elect 947 [306] a temporary presiding officer, who for the time | board, and shall keep record of its proceedings. Chapter 3, section 8. "The common council shall have the management and control of the finances and of all the property of the city, and shall likewise, in addition to the powers herein vested in them, have full power to make, enact, ordain, establish, publish, enforce, alter, modify, amend, and repeal all such ordinances, rules, and by-laws for the government and good order of the city, for the suppression of vice and immorality, for the prevention of crime, and for the benefit of trade, commerce, and health. . . ." Section 2. "In case of vacancy in the office of alderman in any of the wards, the aldermen remaining in office shall have and exercise all the powers of street commissioners of the ward. The resignation of the mayor shall be in writing, directed to the common council or city clerk, and filed with the city clerk, and shall take effect at the time of filing the same." Chapter 2, P. & L., 1872, amended said chapter as follows: Section 1. "The board of street commis The common council is then given, in twen- Chapter 7, section 2. "The common council shall by resolution levy such sum or sums of money as may be sufficient for the several purposes for which taxes are herein authorized to be levied. the powers conferred by law upon the com- Chapter 46, of Laws of Wisconsin for 1879, Chapter 9, section 8. "When any suit or Section 1. "Section seven of the first chapter of said Act (an Act to incorporate the City of Watertown, and the several Acts amendatory thereof, chapter 233 of the General Laws of 1865) is hereby amended so that it shall read as follows: "In the event of a vacancy in the office of mayor. by death, removal, or other disability, the common council shall order a new In case of a vacancy in the office of alderman the mayor may order a new elec election. tion. . . . 66 Any city officer who shall resign his Chapter 204 of the Private and Local Laws of Section 1. "The senior alderman of each lowed, orders on the treasury shall issue there- pointment of inspectors and clerks of election, Section 3. "The common council of said city may, in its discretion, in any year, reduce By the Revised Statutes of Wisconsin of We have given these quotations more fully because the plaintiffs in error seemed to regard them as having some importance in the consideration of the case. The facts as disclosed by the record are briefly as follows: On the 3d of March, 1873, the plaintiffs, by [307] [308] [309] their attorneys, sued out a summons against the | January 1, 1877, with eight per cent interest, 1st. That the summons was not served on the mayor of the city as required by its charter. 2d. That it was not served on three residents and freeholders of the city, as provided by the rules of the court. Thereupon the plaintiff filed an affidavit of the marshal, stating that at the time of service of the summons there was no mayor or acting mayor of said city, and had been none since the 14th day of February, 1873 (the writ being dated and issued the third day of March, 1873). The defendant filed a counter affidavit of the city clerk, stating that he had examined the records of the city and the proceedings of the board of street commissioners for the months of January, February, March, and April, 1873, and from these it appeared that F. Kusel, mayor of the city, resigned the office of mayor on the 30th of January; that from thence to the 24th of February, street commissioner Maak was the chairman of the board of street commissioners and acting mayor of the city; that from the 24th of February to the 17th of March, street commissioner Prentice was temporary chairman of said board, and acting mayor; and that on the 6th and 8th of March, 1873, said Prentice was acting mayor. Upon these affidavits the court on the 8th of April, 1873, being of opinion that the summons had not been served upon the defendant in the manner prescribed by law, so as to give the court jurisdiction of the defendant, or so as to entertain any motion or proceedings in the case as against the defendant or on its behalf, unless it appeared, made an order authorizing the clerk to return the summons to the marshal, to be served on the defendant according to law, or for such further action as the defendant (meaning the plaintiffs) might direct conformably to law. It does not appear from the record that anything further was done for nearly ten years. On the 23d of December, 1882, the marshal made return of service of said summons as follows: "Served on the within named The City of Watertown by delivering to Wm. H. Rohr, last mayor of said city; Henry Bieber, city clerk; Chas. H. Gardner, city attorney, and Thomas Baxter, last presiding officer (or president or ch'm'n) of the board of street commissioners of said City of Watertown, each personally a copy of the within summons and by showing cach of them this original summons this 23d day of December, 1882, the office of mayor of said city being vacant and there being no president of the common council or presiding officer thereof in office." On the same day, June 19, 1883, plaintiffs filed an affidavit of no answer or appearance, caused the amount due on the 84 coupons to be computed by the clerk, and thereupon the court rendered judgment against the defendant by default for the amount so found due, to wit: $7,762.44 damages and $49.70 costs. On the 27th day of July, 1883, the defendant appeared specially for the purpose, and served notice of motion to set aside the judgment and service, on the ground that there had been no service of summons and the court had no jurisdiction of defendant. The motion was based upon the affidavits of Henry Bieber, Thomas Baxter, and William H. Rohr, showing the following facts: 1. That William H. Rohr, designated in the marshal's return as the "last mayor of said city," was elected mayor at the annual municipal election, April 4, 1882, duly qualified and entered upon the duties of the office, and thereafter, on April 10, 1882, duly resigned the office in writing directed to the common council and filed his resignation with the city clerk, and had not since been mayor or acting mayor or president of the common council. 2. That Charles H. Gardner, uamed in the return, was never atttorney for defendant in this action, or authorized to appear or to accept, admit or receive service for it therein. " 3. That Thomas Baxter, designated in the return as last presiding officer (or president or ch'm'n) of the board of street commissioners of said city," was the senior alderman of the 3d ward, and as such a member of the board of street commissioners of the city, from April 10, 1882, to April 7, 1883. That but one meeting of said board was held in November, 1882, and that was on November 11, 1882; that no mayor and no chairman elected by the board to preside at its meeting in the mayor's absence, being present, William F. Voss, senior alderman of the 6th ward, and a member of the board, was chosen by a viva voce vote of the members present chairman pro tem., to preside at that particular meeting, which, after the transaction of its business, adjourned on said 11th of November, 1882. That there were only three meetings of said board in December, 1882, to wit: regular meetings December 4th and 18th, and a special meeting December 27th; that there being no mayor nor chairman elected by the board to preside at its meetings in the mayor's absence, present at either of said meetings of December 4th or 27th, said Baxter was chosen at each said meeting by a viva voce vote of the members present chairman pro tem, to preside at that particular meeting, and that said meetings adThereupon, on June 19, 1883, plaintiffs filed journed sine die respectively on December 4th their complaint setting out four bonds of and 27th, after the transaction of their business, $1,000 each, dated June 1, 1856, issued by the and that said Baxter ceased to be such tempodefendant to aid in the construction of the Warary chairman after the adjournment of said tertown and Madison Railroad, and payable meetings. That the meeting of December 18th, [310] [311] [312] being without a quorum, adjourned without | year, and then all but the senior aldermen con- That besides said two meetings in December, On the hearing of the motion, May 16, 1884, 4. That no copy of the summons had ever The plaintiff submitted two affidavits of Mr. 1. That the book in the city clerk's office The errors assigned are 1. That the court had no jurisdiction or power to vacate the judgment at a subsequent term. 2. That the return of the marshal showed a valid service which was not changed by the affidavits. We have no difficulty with regard to the first question raised by the plaintiffs in error. It is clear from the record that the application to set aside the judgment was made at the same term it was rendered. The judgment was entered on the 19th day of June, 1883. During the same term, as we infer (and it is not disputed), namely, on the 27th of July, 1883, the defendant's attorneys gave notice of a motion to set aside the judgment, to be heard on the 28th of August, and annexed to the notice the affidavits on which they relied. Service of this notice and of the affidavits was acknowledged by the attorneys of the plaintiffs without objection. Why the motion was not argued on the 28th of August is not shown. It was probably postponed by agreement of the parties, or at the suggestion of the court. It did not actually take place until May, 1884, during the contin lance of the December Special Term of 1883. The District Judge certifies that by agreement of counsel and the consent of the court, it was then heard, together with a similar motion in the case of Worts and others v. The City of Watertown, some of the affidavits being used in both cases. From what appears on the face of the record it is to be presumed that the hearing of the motion was continued by consent, or by direction of the court, from the 28th of August until the following term, which was the December Special Term. The objection, therefore, of want of jurisdiction to set aside the judgment on account of lapse of time is with 2. That accounts were audited at said meet-out foundation in fact. As we have stated, the main question is, 3. That the city clerk said that every alternate Monday had always, for a series of years, been the regular time for meetings of the common council, if there was one, and of the board of street commissioners if there was none. [313] [314] |