Page:Federal Reporter, 1st Series, Volume 9.djvu/816

 FORSYTH V. PIEBSON. 801 �Forsyth and another v. Piebson and others. (Circuit Court, D, Jndiana. January 17, 1882.) �1. Obdbb for Appbabance op Non-Resident Defendants in Certain Equitt �StriTS tTNDBR Section 8, Act op Mabch 3, 1875, (18 St. at Large, 472.) �A marshal's return of " net found" ia the district where the suit is brought is not a condition precedent to the making of the order contemplated by the act of March 3, 1875, 4 8, (18 St. at Large, 472.) Buch order may be made upon a proper ghowing by affldavit alone. �2. Same— Return-Dat. �The court may, in such order, flx any day certain for the appearance of the non-resident defendant, and is not limited to the usual rule-days in equity. �3. Same — Service cf. �Such order is not a " subpœna" or " process" within the meaning of rule 15 or 17, requiring service by the marshal or his deputy of the district where the suit is brought, or by some one specially appointed therefor by the court. No particular mode of service or proof thereof is prescribed by the act. Service by the marshal or his deputy of the district whereof the non-resident defendant is an inhabitant, orwherein he is found, and the return thereof in the usual form or by affldavit, are sufflcient. �■ In Chancery. �J. R. Doolittle, Jr., and McDonald e Butler, for complainants. �Baker, Hord e Hendricks, for intervening petitioners. �Grant, Swift & Bradley, for defendants. �Gresham, D. J. The complainants filed their bill of complaint against the defendants on the eleventh day of November, 1881, to enforce their right to redeem certain real estate, situated in Indiana, from a mortgage, both of which are described in the bill. At the same time the East Chicago Improvemeiit Company filed its inter- vening petition setting up that it was the owner of the mortgaged premises by mesne conveyances from the complainants, who were the mortgagors, and that it desired to make varions permanent and expen- sive improvements upon the premises, which could not be made while the mortgage remained upon the property. The petitioner paid into court $75,000, which, addedto $135,000 already paid in by the complainants, was, the petitioner averred, more than sufficient to pay the amount that was claimed to be due upon the mortgage. The prayer of the intervening petition was that the lien of the mort- gage should be transferred from the lands to the fund in the registry of the court, and that the mortgagees should be decreed to enter sat- isfaction of their mortgage. �At the time the bill and intervening petition were filed, J. E. Doo- T.9,no.l4 — 51 ��� �