·PITMAN V. UNIT;ED STATES.
169
it·. Its plain meaning is that the suit shall proceed, not that it shall proceed unless the defendant moves to dismiss. ThE' defendant is not in court against his consent, but by his own act; and the Eluit is to proceed as if brought by original process, and the defendant had waived all exception to jurisdiction, and pleaded to the merits. * * · The first act of the defendant, indeed, under .section 12, is something more than consent,-something more than a wai.ver of objection to jurisdiction. It is a prayer for .the privilege of resorting to federal jurisdiction, and he cannot be permitted afterwards to question it." This case is not cited in any of the subsequent cases in the circuit court which hold otherwise. As they are in conflict with it, they cannot be regarded as authority. Precisely whaLth.e chief justice said might result if the construction claimed was recognized, is sought in this case, for counsel insist, not only that there was no service in the state court, and that no amendment can be made by the sheriff of the state c9urt, but also that the case does :not com.ewithiri the provision of the Revised Statutes of the United to amendments, (Rev. St. U. S. § 954;) and that thereStates fore nothing.can be done excepting to dismiss the suits. The motions are overruled. The defendant will have 30 days within which to answer.
PITMAN
v.
UNITED STATES.
(DiBtrlct Oourt, D. Blwde
February 16, 1891.)
10
CoURT-SESSION-AD10URNMENT.
Rev. St. U. S. § li83, which provides that, wbenever the judge Is not present at the "commencement of any regular, adjourned, or special term, "the court may be adjourned on his written order, applies to sessions of court held after an adjournment for several days by order of the jUdge. The clerk is entitled to biB per diem for attending court on a day when it is 80 adjourned. .
S.
CLERK Oli' COURT-FEES.
At Law. This was a petition for the allowance of the claim of lIenry Pitman for fees as clerk of the district and circuit courts for this district. It appeared in evidence that from October 14, 1854, to December 14, 1888, he was clerk of the district court, and from October 14, 1854, to the present time he was clerk of the circuit court; that as such clerk he attended in the circuit court on the following .days, when the court was in session and was adjourned under the provisions of Rev. St. § 672, towit: February 6 and 8, October 5, 9, 11, 12, 14,15, 18, and 26, November 2,4,5,6, 13,27,29, and 30, 10, 13, and 17, in 1886; JanUluy6, 8,14, 24, 25, 27, and 31, February 3, 7, 11,12, 14, 21, 22,23,24,25, and 26, March 2, 3, 4,5, 9, 11,15,16,21,22,23, 24, April 11, 14, 16, 18, 21, 23, 25, 26, 28, 29, and 30, May 3" 6, 9, 12, 14,16, 20, June 6, 7, 9, 13, 16, 23, 27, 28, and 30, July 5,
160
FEDERAL REPORTER,
vol. 45.
9,11; and 14, :August 8,in 1887; June 25, in 1889; that as such clerk he attended in the district court on the following days when the court was in session and was adjourned under the provisions of Rev. St. § 583: October 6, 19, and 27, November 17, December 1, in 1886; January 5, 12, and 2l>, April 13, 20, and 27, May 11, June 8, and 29, in 1887,-being in the whole 99 days, and that his claim for his fee for such attendance has been disallowed by the accounting officers of the treasury. James M. Ripley, for petitioner. The petitioner is entitled to an allowance of $5 for each day's attendance, under the provisions of Rev. St. § 828. The provisions of Rev. St. §§ 583, 672, apply to any day to which the,c(mrt is adjourned, and at which the jUdge 18 not present. Rathbone Gardner, Dist. Atty., for the United States. The clerk is entitled to his fee" for his attendance on the court while actually in In the absence of any further provision, the court could be considered actually in session only when the judge is present. Other statutes, however, make it evident that in the view of congress the courts may be in session in the absence of the jUdge, (Rev. St. §§ 583, 672;) and appropriations have been made for the payment of clerks for attendance WI16D the court is adjourned under the provisions of these sections, (24 St. at Large, 541.) The question to be determined is whether the words "commencement of any regular, adjourned, or special term [session]" apply to each and every day to which the court has been adjourned during the term. (1) To make them thusappli. cable takes away their entire significance. They might have been omitted, and the meaning of the statute would have been the same. "If the jUdge of any district court is unable to attend. * * * the court may be adjourned by virtue' of a written order," etc. (2) The pbrases "regular term," "special term," and "adjourned term," and "regular, adjourned, and special sessions." are freqllently used in the statutes with a meaning peculiar to themselves, and entirely distinct from a mere adjournment from day to day during the term. Rev. St. §§ 578, 579, 581. 586, 661-670, and especially 671, where a session is evidently made to consist of more than a single day. (3) 'fhe fact that these phrases are used in a special meaning in sections immediately preceding those, sections the interpretation of which we are now considering adds force to the presumption that they were intended to bear that meaning in those sections also. CARPENTER, J. The problem in this case is to ascertain the meaning of the words" regular, adjourned, or special term." Rev. St. § 583. In literal meaning, and the earliest use of the word, it signifies a definite period of time, during which the court remains in continuous session. There is, however, nothing here implied which will exclude a session consisting of a single day. The term is that session of the court which begins at a time fixed by or under authority of law, and, having proceeded continuously, ends when the business then under consideration is concluded. The statutes provide in what manner special and adjourned terms may be called, giving particular directions as to certain districts, and providing, in general terms, which cover the case of this district, that special terms or sessions may be held at the appointment of the judge. Rev. St. §§ 581, 669. It is contended on behalf of the
PlrMAN tl. UNITED STA.TES.
161
United States that the language ofthese sections, well as of other sections in which'the same words are used, implies a session, at a time separate from the time of the regularly appointed term, and not during the continuance thereof. rrhere is 'no doubt that the words used in these 'sections were written in view of such an arrangement of the sessi6us, because iuniany,ifnot inmost, cases at the present time, and no doubt in all cases at thetime these sections were originally framed, it was the habit of the courts to meet at the time appointed by law, and, having remained in session for a few days, to adjourn to the next succeeding dny fixed by law for a regular term, and in like manner to adjourn each special term whenever it beca:me necessary to hold such.: The terms or sessions (for there seems to' be no distinction made between, the two words) were therefore marked off from each other by considerable intervening spaces of time, within which no session of the court was held. At the present time the convenience of litigants and of the public business requires a different arrangement of the sessions of the courts; and in this district it has been found most conducive to the public interest that the courts shall meet at the times fixed by law, and transact such business as may then appear, and thereafter shall hold, by successive adjournments and appointments at short intervals, a substantially continuous. session until the next succeeding day for the commencement of a regular term. During the continuance of these sessions the attended in. court here wheneyer their engagements did l not take them elsewhere, and on the occa,sion of their absence, or expected absence, for It time which might be definitely fixed or which wasindeterry,inate by reason of the doubtful exigencies of business elsewhere, they have sometimes,. as in this case, made provision for adjournment according to the termsQf sections 583 and 672. Th'3 question here raised is whether those sections are inapplicable by reason of the fact the sessions so adjourned by written ordeJ.'c.Qnsisted of only one day, or by reason oOhe fact that Were not sepl,I.rated by any considerable interval from the precedi,ng regula,r tenn,. 'or by reason of the fact that they were held between the day when a regula,rsession ,washegun and thefiaywhen that session must give place by an adjournment to the next regular ,Session. In 8ijswer to this questi9n it is to be observed that the language.of the statute is broa4 enough not, in terms, required to to include this case. Special sessionS be of any particular length, or to be held at any particular time. The; time when 'they are to be held is not :m{lntioned in the provision ail'" to circuit courts, and they are provided to be held "at such time as maybe ordered" in the case of district courts; and when the purpose and object of the statute are considered, I think it clearly appears that the provisions of these sections are applicable to the case under consjderation. The purpose of those provisions is evidently,-First, that the and orderly, sequence of sessions and. of the record thereof shall not be interrupted by the absence of the judge; secondly, that w!tnesses, and parties who may desire to attend, and court officers: '\those duty it is, to attend,may· be notified by an: .authentic act at wha.t' v,45F.no.3-1l
as
162
vol. 45·.
time, the. session will :!Tbese are equally important in cases where the sessions are short, frequently interrupted,a.nd frequently resumed, as they are in whel1e the sessions are longer, less frequent, and separated by intervals. oftime longer and more distinct. In the absence, therefore, of any express words of limitation of sections 583 a.nd 672,. I am of opinion that they apply to the days ,in:question. . To ,state my opinion in another. form, I think·thewords" the comlll.encement of anyregular,adjonrned, or special terrn,"'ili. section 583, and,!'aIiy regular or adjourned or special session.." inseotion 672, refer to any day at which a court is appointed to sit, whether by regular app()intment in the statute, or by adjournment ot,special appointment by orderofthejudge,and .pu:Dsuaritto law. The j,udgment will therefore be that the petitioner reoover his fees for 99. days, at $5 a day, amounting to 8495.
eases
DAVIS
V.UNITED STATES.
(Dfstr1ct.Co'Wrt, D. Maine.
January 19,1891.)
L CLEU OJ!' .' ... . . The disallowance 1:>,1 the first comptrolter of the treasurr..of fees claimed by a olerk of the conrt is not conclusive againsttlie clerk on a petitIon by' him for the recovery obuch fees. Following 1:larmon v. U.S., 48 Fed.:Jlep. 561. S. BAME__PKOPER CHARGES' AGAINST UNITED. STATES. ' Tho clerk is entitledt<JfeE!s for entering orders of approval of clerk's and district attorney's andmllorshal'!!and commissiOner's accounts, and filing papers with same, for swearing bailiffs, for filing venire8 anq. precepts to distribute, and other papers, and for taking acknowledgments of sUretielion recognizances. .
At Law. Edward M. Rand, for petitioner. G.eM'ge E. Bird, U. S:· Atty.
WllBll, J. This is a petitiori by'the clerk of both the circuit and dig.;. trictcourts to recover the sum of 8141.Q5, fees forofHcial services charged in his accounts, and disallowed by the treasury accounting officers. The charges are classified undedhe'following heads: 1. Entering orders of approval of clerk's accounts, and iliing papers -.. .. $20 00 wIth same, 2. Entering orders of approval of accounts of the U. S. attorney, and filing accompanying papers, ' 2770 S. Entering orders of approval: of plllrshal's accounts, and filing accompanying papers. ... ' . 51 3() 4. Entering orders of appro,Val cOmmissioner's accounts. 2291) 6. Swearing bailiffs. '''''. . - . .'. 80 Filing venires and precepts to distribute. 560 7. Filing papers. 880 8. Taking acknowledgments of sureties on recognizances, 4 25 Q. Excessive reduction by;reason of error in computation. 26