however, as stated by Messrs. Mitchell and Hammond above, the second draft dropped this alternative and adopted Rule 3 as it stands above.

That there are strong considerations in favor of the method of commencing suit followed in New York was forcefully pointed out by the Advisory Committee of the New York State Bar Association for the Western District of New York in the December, 1937, issue of the Bulletin of the New York State Bar Association. The Committee said (p. 268): "The method of commencing an action which has obtained in New York for almost ninety years is simple, has meen found to work satisfactorily, and instances of abuse have been negligible. The volume of litigation in New York State and likewise in New York City exceeds that in any other state and city, respectively, and there has been no demand or even suggestion that change be made as to the manner of commencing actions. On the contrary, in inferior local courts the cumbersome practice which formerly prevailed of filing a complaint and issuing a summons had to give way to the more simple method prevailing in the Supreme and county courts. An action should be commenced by the simple issuance of a summons by the plaintiff or his attorney, and its service, without the necessity of filing a complaint. The problem under the present Federal system of building up and keeping old and useless files in large volume is most burdensome and is rapidly becoming almost insoluble. The opposition of members of the Bar who have had no experience with the system which prevails in New York and other states should not prove a bar to its adoption, which would be a great step towards simplification of procedure. The service of a summons often brings about the settlement of

a just claim; if patent litigation requires the filing of a complaint the Rules can so provide."

7. Filing does not confer jurisdiction.

Will merely filing the complaint confer jurisdiction upon the court, irrespective of the issuance and service of process? In dealing with equity cases the federal courts have heretofore indicated to the contrary.

In Farmers' Loan & Trust Co. v. Lake St. El. R. Co., 177 U. S. 51, 44 L. Ed. 667, 20 Sup. Ct. 564 (1900), there was presented a situation where a foreclosure proceeding had been filed in the United States Court and process issued. Subsequently a bill was filed in the State court to enjoin the foreclosure proceeding and the state court summons was served before the federal process. The contention was that the jurisdiction of the state court first attached, but the court held that this was not well founded, quoting the language from Story to which attention has already been directed in the preceding paragraph of this note, and also using the following language: "As between the immediate parties, in a proceeding in rem, jurisdiction must be regarded as attaching when the bill is filed and process has issued, and where, as was the case here, the process is subsequently served, in accordance with the rules of practice of the court." According to this, filing the bill commences the suit and, provided process duly issued is subsequently duly served, jurisdiction attaches as of that time.

A similar factual situation was presented in Brown v. Pacific Mut. Life Ins. Co. (C. C. A. 4th, 1933), 62 F. (2d) 711, where the court, upholding the jurisdiction of the federal court, said: "We think that a suit in equity is commenced, so that the court acquires jurisdiction of

the cause, when the bill is filed, whether the suit be in rem or in personam." In Wheeler v. Walton & Whann Co. (C. C. Del. 1895), 65 Fed. 720, the court said: "Service of process is always requisite, and, until the subpoena has been served on the defendant, jurisdiction is not complete, either of the parties or of the property." In this latter case the court also quoted from Justice Bradley, 2 Woods 427, as follows: "Service of process gives jurisdiction over the person. Seizure gives jurisdiction over the property; and until it is seized, no matter when the suit was commenced, the court does not have jurisdiction."

And in Equitable Life Ass. Soc. v. Schwartz (C. C. A. 5th, 1930), 42 F. (2d) 646, the court said: “A suit in equity is commenced when the bill is filed and process is issued, where the process is subsequently served."

8. Statute of limitations-Former Equity Rule.

of

The question will doubtless arise as to whether an action commenced by filing a complaint is commenced in such manner as to toll the statute of limitations, irrespective whether summons is subsequently served within the statutory period. In this connection, note Rule 4 (a), post, which provides that upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to a person specially appointed to serve it. In a note to the draft of the latter Rule in this form the committee, referring to the question arising because by previous draft there could be a lapse of time between filing the complaint and issuing the summons, said: "This change reduces the chance of such questions arising."

Appearing before the Committee on the Judiciary of the House of

Representatives on March 2, 1938, Edgar B. Tolman, discussing the possible problems involving the statute of limitations, said: "Questions of similar nature, based on different laws and on different circumstances, make this a problem of many variations and much difficulty. The Advisory Committee and the Court could not, of course, settle these problems in advance. . Rules 3

and 4 (a) are drafted to avoid, as much as any rule can, the possibility that such questions will arise." Hearings, p. 74.

It is quite customary for state codes to deal with the limitations issue by providing that an action is commenced against a defendant within the meaning of limitation acts when the summons is served on him or a co-defendant jointly interested; also that an attempt to make service under the circumstances prescribed may be equivalent to commencement. See, for example, Cahill's New York Civil Practice Act, §§ 16 and 17; 2 Comp. Laws N. D. (1913) § 7383; Comp. Laws S. D. (1929) § 2264; Wis. Stats. (1935) 330.39, 330.40.

Dealing with and construing code provisions of similar import, see Burns v. White Swan Min. Co., 35 Ore. 305, 57 Pac. 637; Haupt v. Burton, 21 Mont. 572, 55 Pac. 110; Nash v. El Dorado Co., 24 Fed. 252; Bankers' Mortgage Co. v. Leisure, 172 Okla. 170, 42 P. (2d) 863; Barber Asphalt Paving Co. v. Botsford, 50 Kan. 331, 31 Pac. 1106.

Above Rule 3 obviously affords no such specific guidance as do these state code provisions.

Former Illinois chancery authorities would lead to the conclusion that issue or service of process is unnecessary to stop the running of the statute of limitations. Prior to the adoption in 1933 of the Civil Practice Act which merged law and equity procedure in Illinois, section

4 of the Chancery Act of that state provided: "The mode of commencing suits in chancery shall be by filing a bill of complaint with the clerk of the proper court, setting forth the nature of the complaint." Ill. Stats. 1871-1872, p. 329. This was, of course, a codification of the Equity Rule in that regard. Construing it in Alexander Lumber Co. v. Kellerman, 358 Ill. 207, 192 N. E. 913, the court said: "The filing of the bill is the commencement of the suit. Johnson v. Davidson, 162 Ill. 232, 44 N. E. 499; Warner v. Mettler, 260 Ill. 416, 103 N. E. 259; Mack v. Liverpool & London & Globe Ins. Co., 329 Ill. 158, 160 N. E. 222, 57 A. L. R. 1039. The statutory two-year limitation does not apply to obtaining jurisdiction of parties but to the commencement of the suit. To say that a chancery suit is not commenced against the defendants named in the bill until process is issued or an affidavit for publication is filed would be to read something into the statute that is not there. The making of parties defendant to a bill in chancery and obtaining jurisdiction over them are wholly different matters. Summons cannot issue and publication cannot be made against anybody until the suit is commenced by the filing of a bill. Hodgen v. Guttery, 58 Ill. 431. Until one is made a party to a bill, the suit is not commenced against him. Dunphy v. Riddle, 86 Ill. 22. The corollary of that holding is that, when he is a party to the bill, the suit is commenced against him. The parties named in the bill are the only ones against whom summons can be issued or publication had. It follows that, whenever process can be issued or publication can be had against one, he is necessarily a party to the suit. The issue or service of process is not what makes him a party. It is a step in obtain

ing jurisdiction of his person after he is a party to the suit."

The principle announced in recent federal equity cases would seem to be that filing the complaint before the statute has run will suffice, even though process is not served until after the limitations period has intervened, provided process is issued. promptly and served within reasonable time. See Equitable Life Assur. Soc. v. Schwartz (C. C. A. 5th, 1930), 42 F. (2d) 646.

In United States v. Hardy (C. C. A. 4th, 1934), 74 F. (2d) 841, the court said: "It is suggested, however, that a suit in equity in a federal court is not begun until the delivery of the subpoena to the marshal The earlier chan

cery practice would have given support to this contention. The better rule to be applied, we think, is that a suit is commenced by the filing of the complaint with the bona fide attempt to prosecute the suit diligently, provided there is no unreasonable delay in the issuance or service of the subpoena. . . . And so it has been held in this circuit and elsewhere that it is the filing of the complaint rather than the issuance of the subpoena that marks the commencement of the suit."

"In the absence of a statute to the contrary it is the general rule that an action is deemed commenced so far as the parties to it are concerned from the time the writ, summons, or other process is issued and delivered, or put in course of delivery, to the officer, with a bona fide intent to have it served." Sparks, J., in Andis v. Schick Dry Shaver, Inc. (C. C. A. 7th, 1938), 94 F. (2d) 271.

"Under settled authority I find that whenever personal jurisdiction of a defendant is secured by service of a subpoena or by his appearance, the commencement of a suit in equity relates back to the time when the bill was filed and the subpoenas

issued." Woolsey, J., in Securities and Exchange Commission v. Torr (D. C. N. Y. 1938), 22 F. Supp. 602.

"Although Rule 3, that 'A civil action is commenced by filing a complaint with the Court,' seems selfexplanatory, room is left for interpretation. The Rule is applicable to suits against the United States as well as to private litigation; but in neither case is it certain that the Rule means that suit is commenced for the purpose of the statute of limitations when the complaint is filed. The indications are that the filing of the complaint should be the inception of the suit for the purposes of the limitations statutes as well as for other purposes." Note in 51 Harv. L. Rev. 1087, 1091.

In an action in a federal district court to obtain a tax refund, just as in the Court of Claims, the filing of the petition and not the date or its subsequent service on the United States attorney and its mailing to the attorney general marks the beginning of the action for the purpose of determining whether it has been brought within the statutory limitation period. Bates Mfg. Co. v. United States, 302 U. S. -, 82 L. Ed. -,58 Sup. Ct. 694 (1938).

9. - Rule as announced in former law cases.

In Creasy v. United States (D. C. Va. 1937), 20 F. Supp. 280, Judge Paul said: "Under the common-law procedure, suits are begun by the issuance by the clerk, at the direction of the plaintiff, of a writ, customarily termed a "summons," addressed to the defendant and direct

ing him to appear. This writ is de

livered to the sheriff or other officer or to be by him served upon the defendant, and the officer makes a return thereon showing such service. The question of when a suit is deemed to be commenced for the purpose of stopping the running of the statute of limitations has fre

quently arisen in the courts, and undoubtedly the weight of authority is that, unless otherwise provided by statute, the suit is deemed to be commenced, so far as the parties to it are concerned, from the time that the summons, or other process, is issued and delivered to the officer, with a bona fide intent that it shall be served. Ross v. Luther, 4 Cow. (N. Y.) 158, 15 Am. Dec. 341; Johnson v. Farwell, 7 Greenl. (Me.) 370, 22 Am. Dec. 203; Anderson v. Aetna Life Ins. Co., 75 N. H. 375, 74 A. 1051, 28 L. R. A. (N. S.) 730; and see 37 Corpus Juris, 1055. In some states this general rule has been embodied in a statutory provision. This is the case in Virginia. Va. Code, § 6061. See Burks Pleading & Practice (2d Ed.), p. 391. Under the general rule, the mere filing of the declaration in the clerk's office is not a commencement of the suit for the purpose of the statute of limitations. Nor is the mere filling out of the process by the clerk sufficient. It must be delivered, or put on the way of delivery, to the officer for the purpose of service. Ross v. Luther, supra; Webster v. Sharpe, 116 N. C. 466, 21 S. E. 912; International Paper Co. v. Com., 232 Mass. 7, 121 N. E. 510; U. S. v. American Lumber Co. (C. C. A.) 85 Fed. 827."

Under former practice, some situations were affected by special statutory provisions. Thus, in a late case it was held that action on a war risk insurance contract was not brought within the statutory time, where no copy of complaint was served on the district attorney within such time and the original complaint was not filed in the clerk's office until after trial, though praecipe for issuance of summons was filed therein and copy of summons was served on the district attorney before the expiration of such time. Munro v. United States (C. C. A. 2d, 1937), 89 F. (2d) 614,