Nome & Sinook Co. v. Ames Mercantile Co.

This cause is here on a writ of error from the judgment of the trial court rendered on the pleadings.

The first question to be disposed of arises upon defendant’s motion to dismiss the writ of error. The ground assigned for the motion is that the citation is not made returnable within 30 days, as required by section 5, rule 14, of this court ( 150 Fed. xxix , 79 C.C.A. xxix ); the same having been made returnable within 60 days. It may be premised that the citation is not jurisdictional; it being intended only for the purpose of notice and may be waived, or substituted by proof of other equivalent notice. See Farmers’ Loan & Trust Co. v. Chicago & N. P. R. R. Co., 73 F. 314 , 19 C.C.A. 477 , and cases there cited.

Not being jurisdictional, if defective, a new citation may be taken out if necessary (Shute v. Keyser, 149 U.S. 649 , 13 S.Ct. 960 , 37 L.Ed. 884 ); and the mere fact that a citation is not issued until after the time limited for taking the appeal has expired does not defeat the jurisdiction of the appellate court. Berliner Gramophone Co. v. Seaman, 108 F. 714 , 47 C.C.A. 630 . So it has been held by the Supreme Court that, where a citation was served and made…