John Beecher v. George C. Wallace

The sole question in this case is whether a summons issued in a state court at the time of the commencement of the action has any legal effect when served on one of several defendants after a co-defendant has removed the action to the federal courts. Stated differently, does a state court summons issued but not served prior to removal of the state court action to the federal courts retain any efficacy for further service of process after the removal ? The district court concluded that it does not. We agree.

28 U.S.C. § 1448 provides in part:

A careful reading of the statute discloses that the statute contemplates three separate situations: (1) where a defendant has not been served at all with state process prior to removal; (2) where a defendant has been served prior to removal but the service has not been perfected in accord with state law at the date of removal; (3) where -a defendant has been served prior to removal but the summons contains some formal defect on its face.

The purpose of process is to give the addressee notice of the proceeding against him. Thus service of process (in the absence of a voluntary appearance or a conscious waiver) is an indispensable…