Martin v. Gray/Opinion of the Court
The contention of plaintiff is that the return on the subpoena is wholly worthless, and shows no service; and that the decree and decretal sale, based on such a return alone, are null and void. The following are the two rules in equity which regulate the manner of service: 'Rule 13. The service of all subpoenas shall be by a delivery of a copy thereof by the officer serving the same to the defendant personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some adult person who is a member or resident in the family.' 'Rule 15. The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise. In the latter case, the person serving the process shall make affidavit thereof.' It is insisted that the service in this case was not made by the marshal or his deputy, but by J. C. Hays, who was not* a person appointed by the court for the service of this process, and who made no affidavit of service. Before considering the question of service, a preliminary matter is worthy of mention. This is an application to a court of equity to set aside deliberate proceedings of a court of superior jurisdiction, and is made more than 11 years after the matters complained of took place. There is no allegation that the subpoena was not in fact delivered to the plaintiff, or that he was ignorant of the proceedings in court, or of the possession taken and held by the defendant. While the bill alleges that plaintiff was at the time of the filing a citizen of Kansas, it does not show how long he had been such. It is averred that the plaintiff's mother, sister, and brother, joint owners with himself of the property, were made parties defendant to the foreclosure proceedings; and it is not a verred that they were not duly served with process. It is shown that the defendant entered into possession immediately after the sale, and has continued in possession, receiving the rents and profits. From what is stated in the bill, as well as from what is omitted, it is a fair inference that this plaintiff received the subpoena at the time the original suit was commenced; that he was a ware of all the proceedings in the court; that he knew of the change in possession; and that he remained in Louisville for years thereafter, with full knowledge that the defendant had the possession, claimed it under the decree, supposed he was owner, and received the rents and profits as owner; and yet during all those years made no complaint, and took no steps to assert any rights as against the decree and sale. Now, it is a rule of equity that an unreasonable delay in asserting rights is a bar to relief. A familiar quotation from Lord CAMDEN, in Smith v. Clay, 3 Brown, Ch. 639, note, is that 'nothing can call forth this court into activity but conscience, good faith, and reasonable diligence.' Is not the delay disclosed by this bill such laches as to defeat plaintiff's claim? For 11 years he was inactive, and, as may be fairly inferred from the bill, with the full knowledge of his rights, and nothing to hinder their assertion. No excuses for this are given; the bill is absolutely silent as to any reasons for delay. But if this long delay will not of itself bar plaintiff's claim it at least compels any reasonable construction of language which will sustain the decree. Now, it is not averred in the bill that service was not made by the marshal, nor that Hays was not a general deputy. What relations he sustained to the marshal, what position he held under him, are not disclosed otherwise than by the return on the subpoena. While from that it may be inferred that he was a special bailiff, with only such powers as were given by the designation written on the subpoena, yet it is consistent with all that appears that he was also a general deputy, who was by the marshal designated for this special service. More than that, it is a fair question from the return as to who in fact made the service. The return is signed: 'R. H. Crittenden, U.S. Marshal. J. C. Hays, S. H. C., Special Bailiff;' and not: 'R. H. Crittenden, U.S. Marshal. By J. C. Hays, S. H. C., Special Bailiff.' If it were not for the designation above the return, it would not be doubted that the latter was to be construed as showing service by the marshal, and the name of the special bailiff would be disregarded as surplusage. Giving to the designation all the force that fairly belongs to it, it is a reasonable construction of the return that the service was made by the marshal and the bailiff, either jointly or severally. And, if, severally, then on the two defendants, respectively, in the order in which they are named, which would make that on this plaintiff service by the marshal himself. Further, the district court is one of superior jurisdiction, in favor of the validity of whose proceedings, when collaterally attacked, is every intendment. Its jurisdiction in any case will be presumed, unless it appears affirmatively on the face of the record that it had not been acquired. Putting, therefore, these things together, to-wit, the unexplained delay, the reasonable inferences from what is stated and what is omitted, the presumptions in favor of jurisdiction, and the different constructions of which the language of the return is susceptible, we are of the opinion that the ruling of the circuit court sustaining the demurrer to the bill was correct, and its decree is affirmed. 

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