This case is brought here, under section 5 of the act of March 3, 1891, as one involving a question of the jurisdiction of the district court of the United States for the district of Colorado; and the first contention we have to meet is that of the defendant in error, that the case is not really within the meaning of that section of said act, but presents only the case of an alleged error in the judgment of the district court, redress for which should have been sought in the circuit court of appeals. It is said that the question of whether or not the district court acquired jurisdiction by a proper service of process is not one which involves the jurisdiction of the court, within the meaning of that term as used in the act; and the case of Smith v. McKay, 161 U.S. 355, 16 Sup. Ct. 490, is cited as sustaining such a view.
In the case referred to the respective parties were duly in court, and the subject-matter of the controversy was within the jurisdiction of the court; but it was claimed by the defendant that the plaintiff, instead of asserting his right by a bill in equity, should have proceeded by an action at law, which afforded an adequate remedy. The court below was of opinion that the plaintiff was not wrong in seeking his remedy in equity. Thereupon the defendant brought the case here directly, contending that the case involved the question of the jurisdiction of the circuit court, within the meaning of section 5 of the act of March 3, 1891. But it was held here that the court, in deciding that the plaintiff's remedy was in equity and not at law, was in the lawful exercise of its jurisdiction, and that, if the court was wrong in so deciding, it was an error for which the defendant should have sought his remedy in the circuit court of appeals.
The present case differs from Smith v. McKay in the essential feature that the contention is that the court below never acquired jurisdiction at all over the defendant by a valid service of process. In such a case there would be an entire want of jurisdiction, and a judgment rendered without jurisdiction can be reviewed on a writ of error directly sued out to this court.
The case, then, being properly before us, we must next consider whether the court below erred in assuming and exercising jurisdiction in the cause by rendering a final judgment against the defendant.
It is contended that the defendant had not been brought within the jurisdiction of the court by a proper writ of summons, and that, the defendant having duly asserted an objection, the judgment entered is void.
It is not denied that the writ in question was in conformity with the existing rule of the district court of the United States regulating the service of process, but it is claimed that the rule and proceedings thereunder are invalid because they did not conform to the provisions of the act of the general assembly of Colorado, providing a system of procedure in civil actions in the courts of justice of that state.
he proposition is based on the supposed meaning and effect of the act of congress of June 1, 1872, as found in section 914 of the Revised Statutes, in the following terms: 'The practice, pleadings and the forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding.'
This section is construed by the plaintiff in error as constituting a peremptory order or direction to the district and circuit courts to make their rules regulating the terms and service of their writs to strictly conform to the provisions of the state statutes regulating such matters.
Waiving any inquiry whether it is competent for a private party, duly served with process in pursuance of the directions of an existing general rule of a court of the United States, to bring into question the validity of such a rule, we think that upon a reasonable construction of section 914, and of cognate sections, presently to be mentioned, the validity of the summons and judgment in the present case can be sustained. It is obvious that a strict and literal conformity by the United States courts to the state provisions regulating procedure is practically impossible, or, at least, not without overturning and disarranging the settled practice in the federal courts.