File No. 22205/9.
It would seem that the question involved is a judicial one, over which
the State courts have concurrent jurisdiction with the Federal courts,
under the authority of the act of February 18, 1875. Should the consul
general deem himself deprived of a right or privilege under a law of the
United States or a treaty, he may, under the Revised Statutes, section
709, have the final judgment or decree of a State court reexamined,
reversed, or affirmed in the Supreme Court of the United States upon a
writ of error.
In view of all the circumstances the department ventures to suggest that
if the consul general wishes at some later stage of the proceedings to
avail himself of the alleged lack of jurisdiction of the State court in
which the action was begun, he make an appearance by counsel and enter a
plea to the jurisdiction.
[Inclosure.]
The Governor of
Colorado to the Secretary of
State.
[Extract.]
Executive Chamber,
Denver, January 5,
1910.
Dear Sir: It appears from the papers in the
case that an action by Pasqualle Corte against Adolphe Rossi for
libel was begun in the district court of the city and county of
Denver on November 1, 1909. Summons was issued on the same day and
served by a deputy sheriff upon Mr. Rossi, by delivering to him a
copy of the complaint and summons at the consulate in the city of
Denver. Mr. Rossi protested to me against the service and wrote me
letters, copies of which I inclosed to you in a former
communication. On November 9 I wrote to Judge Shattuck, and Judge
Shat-tuck wrote to me, copies of letters which I also inclosed in my
communication to you.
It seems that the service of the summons was regarded by the courts
as illegal, and no further action upon that service was had. On the
4th day of November an alias summons was issued in said cause, and
on the 15th day of November service was had upon Mr. Rossi in the
manner following (I quote the return of the party serving the
summons):
State of
Colorado,
City and County of
Denver, ss:
A. H. Rogers, being first duly sworn, on his oath deposes and
says that he is above the age of 21 and is not interested in
the within action in any manner; that he duly executed the
within alias summons on the 15th day of November, A. D.
1909, by delivering a true copy thereof to the within named
defendant, Adolph Rossi, within the city and county of
Denver and State of Colorado, in the manner following, to
wit: Affiant met the said Rossi on a public street in the
said city and county of Denver and exhibited to the said
Rossi the said alias summons, and tendered the same to the
said Rossi and offered to deliver the same to him, saying at
the time of said tender, “Mr. Rossi, I have here an alias
summons for you issued out of the district court of the city
and county of Denver, State of Colorado”; that the said
Rossi thereupon shook his head and said “No, no.” Affiant
then said to the said Rossi, “You understand that if you
refuse this you are served just the same.” To which the said
Rossi replied “No, no; you tried that once.” Thereupon the
said Rossi passed on, refusing to accept the said copy of
the said alias summons or to take the same into his
possession though fully informed as to what the said
instrument was.
A. H. Rogers.
Subscribed and sworn to before me this 17th day of November,
A. D. 1909.
My commission expires January 14, 1913.
(Signed) Arlie M. Doyle, Notary Public.
It appears that the complainant, with his witnesses, January 4,
appeared in the district court of the city and county of Denver,
before Judge Shattuck and demanded a default and presented his
testimony. The papers this morning indicated that Judge Shattuck has
entered a judgment for $10,000, but Judge Shattuck assures me that
no judgment has been entered as yet.
The attorney general looked up the matter before, and when I called
his attention to your telegram he referred to the authorities which
he had examined and wishes to cite. He holds under his authorities
that the State court has jurisdiction, provided the service of the
summons is made at a place other than the consulate. (See Wilcox v. Luco, 118 California, p. 639; De Give v. Grand Rapids Furniture Company, 94
Georgia, p. 605; Bors v. Preston, 111 U. S.,
p. 252; In re Iasigi, 79 Federal, p. 751; 54 Southwestern, Tex., p.
636; 5 Moore International Law, p. 77.)
The attorney general holds that the State court has jurisdiction with
the right of removal upon the part of the consul to the United
States court, which he failed to petition for.
Yours,
