
    FUENTES ET AL., Plffs., v. JOAQUIN SANTOS MALDONADO ET AL., Dfts.
    San Juan,
    Law,
    No. 894.
    On Motion to Quash Summons.
    Conformity of Practice — Revised Statutes, § 914.
    1. The conformity statute, Revised Statutes, § 914, does not require literal conformity of Federal courts to local procedure. The conformity required is “as near as may be,” and is enforced through rules and otherwise at the discretion of the courts.
    Same — Names of Parties.
    2. The Porto Rican Code of Civil Procedure, § 89, requires that the summons shall contain the names of all the parties, but where, as provided by § 92, a copy of the complaint containing these names is served with the summons, the names of the parties need not appear in the summons itself.
    Practice — Summons Directed to Marshal.
    3. The fact that the summons is not directed to the defendant as required by § 89 of the local Code of Civil Procedure, but to the marshal, is not material if actually served on the defendant and notifies him of court, term, time, and place of appearance. It is not a jurisdictional requirement that the process be directed to the defendant rather than to the marshal when the marshal must serve it upon the defendant.
    Summons — Necessary Averment.
    4. Omission in the summons, that, unless the defendant appears, the plaintiff will take judgment or apply to the court for specific relief, is one of form, and not of substance.
    Practice — Amendment.
    5. Where defendants have been before the court in several applications, amendable irregularities will be considered as amended.
    Opinion filed May 15, 1914.
    
      
      Mr. II. II. Scoville for motion.
    
      Mr. E. B. Wilcox for plaintiff.
   HamiltoN, Judge,

delivered tbe following opinion:

Tbe original defendant was served witb a summons and complaint, and a judgment by default was entered and writ executed. It was made to appear, however, that tbe writ of inquiry bad been executed after bis death, and on application of bis heirs tbe verdict was set aside. Tbe case now comes on to be beard upon their application to quash tbe summons on several grounds.

1. Tbe contention is urged that under Revised Statutes, § 914, Comp. Stat. 1913, § 1537, what is commonly called tbe conformity statute, tbe practice of this court should conform to tbe local procedure. This, however, is not correct. In tbe first place, tbe requirement is that tbe practice shall so conform “as near as may be,” and this has been construed by tbe Supreme Court as meaning that, while it was tbe intention of tbe statute to bring about a general uniformity in general and state proceedings in civil cases, nevertheless this should be attained through exercise of tbe discretion of Federal courts in tbe form of rules adopted from time to time. Shepard v. Adams, 168 U. S. 618, 42 L. ed. 602, 18 Sup. Ct. Rep. 214. A literal conformity, therefore, to tbe local practice, is not required, nor has it been tbe custom.

2. Tbe first objection urged is that tbe summons does not contain tbe names of all tbe parties, as required by § 89 of tbe Code of Civil Procedure of Porto Rico. Tbe local Code § 92, requires that “a copy of the complaint must be served with the summons,” and the return of the marshal in this case-shows that this was done. The complaint shows the names of' all parties, and it is not clear, therefore, that the defect alleged,, if it be a defect, could at all prejudice the defendants.

3. It is also urged that the summons is not directed to the-defendant, as required by § 89 of the local Code of Civil Procedure. In point of fact, the wording of the summons shows-that it is a mandate of the President of the United States to-the marshal of this district, as is usual in Federal practice. Ther*e the writ is directed to the marshal and he serves a copy of the writ and of the summons on the defendant. This was-done in the case at bar. A summons duly served on a defendant, which notifies him of the court, term, time, and place where he must appear and answer, would seem to possess the-essentials of such process, and these essentials seem to be presented in the procedure in this case. It would not seem to be-jurisdictional that the process should be directed to the defendant rather than to the marshal, when the marshal must serve it upon the defendant in any event, and did so in the-present case. It issued from the proper court, was served by the proper officer, and gave the defendant proper notice of the suit pending.

4. Stress is also laid upon the fact that the summons omits the provision prescribed in the Code of Civil Procedure, that,, unless defendant appears, the plaintiff will take judgment or apply to the court for specific relief, as the case may be. This point came up in the case of Ammons v. Brunswick-Balke-Collender Co. 72 C. C. A. 614, 141 Fed. 570, and it was there. expressly beld that such, an omission is one of form, and not of substance, and does not make the process fatally defective.

5. These defendants have been before the court in several .applications, and it would seem to be too late for them to raise any question of irregularity. The defects alleged in this motion to quash are at worst amendable, and do not go to the jurisdiction. For the purposes of the present case they will, after this length of time, be considered as amended. United States v. Turner, 50 Fed. 734.

It follows that the motion must be denied, and it is so ordered.  