Page:Federal Reporter, 1st Series, Volume 5.djvu/52

 40 FEDERAL REPOIVIEB. �is as broad and liberal, perbaps, in its terras as any slatute of amendments ever enacted. I think, however, it cannot be beld to be broad enough to permit an amendinent of pro- cess which will make the process effectuai for the purpose of giving jurisdiction over the person of the defendant, wbich the proeess as eerved was ineffeotual to do wbere he bas not Bubmitted himself to the jurisdiction, as in this case be bas not done. The statute is to be construed as appiying only in a case wbere the court bas acquired jurisdiction over the per- son of the defendant. If it bas not done so, ail its acts are nullities as to bim. Nor do I think that the defect of pro- cess now in question oan be considered as a "defect or want of form" within the meaning of this gection. It is a defect of substance and not of form, and is, I think, properly so treated by the state courts. �It is argued that the defect was cured by the prceeipe filed in the clerk's office before the issue of the writ. This clearly is not, so because the pracipe referred to no statute, either by title or by any such general reference as is necessary. The only reference to the statute is in the words "action for stat- utory penalty ; amount claimed, $2,500." This is clearly not a substantial compliance witb the statute, even if the state- ments in the prœcipe can be beld to be equivalent to an in- dorsement on the process as a notice to the defendant, — a question which it is unnecessary to determine. The defendant did not waive the objection by his appearance, "which was special, reserving bis right to make this motion. And it was made seasonably af ter the filing of the oomplaint apprised him fully of the nature of the action. �Motion granted. ����