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UNITED STATES, to Use of O'CONNELL v. KEARNS
LETTS, District Judge.
This cause came on to be beard upon”tbe plea in abatement interposed by tbe defendants.
In addition tp tbe other grounds set forth in support of tbe plea, it was alleged that defendant Ross M. Kearns was never served with summons or other process in this ease, as shown by tbe return of tbe marshal for tbe Southern district of New York. At tbe time of tbe bearing upon said plea tbe court, in view of tbe affidavits submitted therewith, permitted tbe parties to introduce testimony as to tbe fact of tbe service upon defendant Kearns. No testimony, in addition to said affidavits, was produced by tbe defendant. Tbe defendant himself was not produced to testify, nor does bis affidavit denying tbe fact of service appear in tbe record. The deputy marshal from tbe Southern district of New York was called on behalf of tbe plaintiff, and gave some corroboration of tbe correctness of tbe return of service made.
This court finds that defendant Ross M. Kearns was served with the so-called writ of mesne process, as certified by tbe United States marshal for tbe Southern district of New York.
It is urged in support of tbe plea in abatement that tbe service of tbe writ upon defendant Kearns was without tbe jurisdiction of this court, and therefore void. There is no merit in that contention.
It was held in tbe case of United States v. Congress Construction Co., 222 U. S. 199, 32 S. Ct. 44, 56 L. Ed. 163, that” the provision restricting tbe place of suit operates pro tanto to displace tbe provision of tbe Judicial Code, and authorizes tbe court wherein tbe action is required to be brought to obtain jurisdiction of tbe persons of tbe defendants through tbe service upon them of its process, in whatever district they may be.
Tbe plea in abatement raises, however, an additional question, which presents more difficulties and necessitates a consideration of tbe facts. Tbe suit is brought under section 270, title 40, United States Code Annotated, in tbe name of tbe United States, for tbe use and benefit of Frank O’Connell, for labor and materials furnished to the-defendant Ross M. Kearns, who bad contracted with tbe United States to build a
[236] laundry building at the Naval Hospital, Naval Station, Newport, R. I. The suit is upon the bond of the defendant Keams, with the National Surety Company as surety. By the terms of said bond both principal and surety acknowledged themselves to be jointly and severally liable.
The declaration avers that on the 2d day of March, 1921, complete performance and final settlement of said contract was made. The statute in question provides that the suit shall be commenced within one year after the performance and final settlement of said contract, and not later. The original writ was issued March 1, 1922, and service made upon the defendant National Surety Company on March 14, 1922, by leaving a true copy of said writ with the insurance commissioner of Rhode Island.
While there may be a question, as to whether the suit was thus commenced against the National Surety Company within one year, as required by law, this court, in the absence of further proof, will assume that following the issuance of the writ on the 1st day of March, 1922, it was timely placed in the hands of the marshal for the district of Rhode Island before the expiration of the time limit, to wit, March 2, 1922, and, while not finally passing upon that question at this time, the court is compelled to find that defendant National Surety Company has not at this point established that the suit as to it was not commenced within the year.
We come now to a consideration of the sufficiency of the plea as it relates to defendant Ross M. Keams. It appears upon the face of the original writ that defendant Ross M. Keams, alias John Doe, is described as of the city, county, and state of New York. • No assets belonging to defendant Keams were attached within this district under said writ, and it app°ears that the plaintiff knew that the residence of defendant Kearns was in the Southern district of New York. No copy of this writ was, however, forwarded or directed to the marshal of that district for service. The marshal for the district of Rhode Island had no authority to make service of the writ within the district where defendant Keams was described as residing. So far as defendant Keams, therefore, is concerned, the writ, after being issued, was placed in the hands of no person having authority to make service of it. J. E. Petty & Co. v. Dock Contractor Co. (C. C. A.) 283 F. 341, 342.
Approximately 25 days after the marshal had filed his return upon the original writ, to wit, on April 11, 1922, a so-called writ of mesne process was issued, forwarded to the marshal for the Southern district of New York, and served upon the defendant Ross M. Kearns on the 19th day of April, 1922. Was any suit commenced against Ross M. Kearns within one year after March 2, 1921?
It would seem, under the language of the statute, that the limitation of time specified therein constitutes a condition to the right to sue, and does not merely constitute a defense in bar of the remedy. United States v. Scheurman (D. C.) 218 F. 915.
In the briefs filed by. counsel for the plaintiff it is argued that the law of the state of Rhode Island as to the nature and effect of a writ of mesne process should control in this case, and that the writ of mesne process, so called, relates back to the date of the original writ, and that, if that writ be timely issued, then the action taken pursuant to the writ of mesne process would present no additional question involving the timeliness of the suit.
Defendant Keams was not made a party to the suit under the original writ, as the same was never served upon him. That being trae, it would not seem that the second writ which was issued was, so far as Kearns was concerned, a writ of mesne process. Irrespective of that consideration, however, little assistance is to be gathered from the Rhode Island statutes or decisions. We are dealing with a suit based upon a statutory right, having no counterpart at common law. There is, within the meaning of the Conformity Act (28 USCA §§ 724, 726, 727), no like cause existing under the state law, and therefore the decisions, statutes, and practice of the state do not control. United States v. Southern Dredging Co. (D. C.) 251 F. 400.
This court, though desiring to give a liberal interpretation to the law for the benefit of the claimant, as one who has supplied labor and materials, is bound nevertheless to find that no suit was instituted by virtue of what was done against Ross M. Kearns within a year following March 2, 1921. The plea in abatement as regards this defendant is therefore sustained, and overruled, as the record now stands, as to the defendant National Surety Company against which defendant suit may be maintained under the terms of the bond without the contractor being joined. United States v. Ætna Casualty & Surety Co. (C. C. A.) 5 F.(2d) 412.