Page:Federal Reporter, 1st Series, Volume 9.djvu/817

 802 FBDEBAL KEPOBTER, �little, Jr., Esq., one of the complainants' solicitors, filed hia affidavit describing the eomplainauts' cause of action, and stating that John 0. Pierson, one of the defendants, was a resident of the city of Chi- cago and state of Illinois; that the Continental Life Insurance Com- pany was a citizen of the state of Connecticut, and that certain other defendants were citizens of Boston, in the state of Massachusetts ; that neither said non-resident defendants, nor either of them, could be found in the district of Indiana, nor did they, or either of them, voluntarily appear to the complainants' bill of complaint. On the information contained in this affidavit the court entered an order that the defend- ants named in the affidavit appear and plead, answer or demur, to the bill and intervening petition on or before the seventh day of Decem- ber, 1881, and that a copy of the order should be served upon each of sueh defendants. Certified copies of this order and the bill of complaint aad intervening petition were served upon the Continental Life Insurance Company, in Connecticut, on the sixteenth day of November, 1881, by the marshal for the district of Connecticut. �Samuel C. Hays, in an affidavit in whieh he describeg himself as deputy United States marshal for the northern district of Illinois, ' swore that he made similar service on John 0. Pierson on the same day. And B. B. Johnson made affidavit of similar service at Boston on the seventeenth day of November, 1881, on the defendants, who were citizens of that place, describing himself as deputy marshal for that district. Mr. Johnson also indorsed the usual return of service upon the certified copies of the order, bill, and intervening petition, which were placed in bis hands as deputy United States marshal for the district of Massachusetts. �The defendants now appear specially and move to set aside the order of the court and the service of the same, for the reason that the order was prematurely made; that it was not based upon proper information; that the day designated for the defendants to appear and plead was not a rule-day ; that the service should have been by the marshal of this district, or by a person specially named in the order to make the service; and that the intervening petition is not such a proceeding as is contemplated by the act of March 3, 1875. This act provides that when any defendant in a suit in equity to enforce any equitable lien or claim against real or personal property in the district where the suit is brought is not an inhabitant of aor found within the district, and does not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant to appear and plead, answer or demur, to the complainant's ��� �