(dissenting).
The government sued J. L. Hecht and others to recover about $53,000 and interest for tax refunds atfeged to have been erroneously paid out in the form of treasury checks received by them on May 17, 1929. It had to bring its suit before the expiration of two years after that date, section 610(b), Revenue Act 1928, 26 U.S.C.A. § 1646(b), and on May 11, 1931, well within the limitation period, it filed its petition in the District Court of the United States for the Southern District of Iowa, Davenport Division, together with a praecipe to the clerk to issue summons in the cause and place it in the hands of the marshal for service. The clerk made out the summons and delivered it to the marshal on May 13, 1931, and the marshal duly served it on J. L. Hecht and made return of service. Hecht made his appearance in the court by his attorney before the answer day specified in the summons, stipulated for continuance of the cause, and agreed that he would plead “upon demand of the United States Attorney.” Thereafter he made a motion to dismiss the suit as to the main ($40,954.69) item of refund sued for on certain grounds specified in the motion, but without raising any question of the sufficiency of the form of the summons that had been served upon him. There was no ruling on this motion, but on June 16, 1936, Mr. Hecht filed an amended motion to dismiss the action against him. He struck out the allegations in the body of his earlier motion and presented the contention that the summons served on him in 1931 was insufficient and v°id °n acc°unt pf defects therein and, therefore, the suit had not been commenced” against him until he appeared therein at a date beyond the two-year period and after the statute of limitations had run a£ains^ the cause of action' :t was ,helcL The government was denied Permission to amend the summons and it a?Peals from.th'o consequent judgment of lsmlssa-l of lts sult-
14 appears that a rule of court has been in f°rce in the United States District Court for the Southern District of Iowa for many years which provides that all actions at law shall be commenced by filing a petition with the clerk upon which a summons shall be issued and served by the marshal.1 But the statutes of the state prescribed that actions at law shall be commenced by serving the defendant with a notice signed by the plaintiff or his attorney. The difference between proceeding by notice and proceeding by petition and writ of summons is substantial in its consequences and was recently considered hy the Supreme Court in Chisholm v. Gilmer, 299 U.S. 99, 57 S.Ct. 65, 81 L.Ed. 458. It is clear in the light of that decision and the casps cited, that in so far as the above federal court rule forebade the commencement of law actions by the Iowa statutory notice, it was in violation of the Conformity Act, 28 U.S.C.A. § 724. The federal court in Iowa could not by rule prevent the commencement of actions at law before it by notice in accordance with the Iowa practice, with or without the previous filing of a petition in the court. Id.
*928On the other hand, the federal courts are empowered to issue all writs which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law (28 U.S. C.A. § 377) and no case is cited holding that state laws can prevent the federal court’s taking jurisdiction of law actions through issuance and service of the ancient writ of summons upon petition previously filed or that rules of court that provide for acquiring jurisdiction in that way are void. Shepard v. Adams, 168 U.S. 618, 18 S.Ct. 214, 42 L.Ed. 602; Boston & Maine R. R. v. Gokey, 210 U.S. 155, 28 S.Ct. 657, 52 L.Ed. 1002.
A usual incident of commencing actions by the issuance and service of summons is that the petition setting forth the cause of action should be filed in the court before the clerk is required to issue the summons thereon, and, when a petition has been put on file and so made available to the defendant, there is not the same need to incorporate the characterization of the petition or its contents in a summons as is required by the statute to be done in a notice under the other procedure where no petition is necessary to be filed in court before the notice is served. If the federal court had the power to proceed by petition and summons, it would seem that it had power to conform the other incidents of assuming •jurisdiction to that procedure and that it would appear unnecessary for it to compel everything to be put into its summonses that the state required to be put in the statutory notices. The court rule here in question for commencement of action by filing a petition and issuing summons thereon, did not require any information concerning the cause of action alleged in the petition to be put into the summons except to inform the defendant of the name of the plaintiff and that the petition had been filed in the office of the clerk of the court where the action was brought, naming it. There is no question of the sufficiency of such a summons to fully satisfy constitutional requirements.
The .record is clear that the government did everything the federal court rule required it to do in order to commence its action against Mr. Hecht within the limitation period. It filed its petition and its praecipe and it procured the summons to be timely issued, served upon Hecht and returned by the marshal. The summons was upon the form used in the court for years (doubtless in hundreds of cases) with “Summons” printed thereon twice in very bold type, and it bore teste the day it was issued. It was issued, signed, and sealed by the clerk and the name of the United States attorney was duly indorsed upon it. It informed the defendant that the complaint which he was required to answer was filed by the United States of America and the appellation of the court appeared at length twice on the front and again on the back of the summons, together with the name of the judge of the court and of the clerk, and the answer day was fixed on the first day of the next term of the court. There was no deceit or misinformation in it, or anything apt to mislead the defendant, and that it did its office of a summons completely and effectively in this case, as it had done in possibly a thousand others for years, is made manifest by the timely appearance of Mr. Hecht in the case by his attorney before the answer day named in the summons had arrived, and also by the language used by Mr. Hecht in a motion he made early in the case in which he said: “the summons served on this defendant was delivered to the Marshal” * * * “the record herein including plaintiff’s petition and summons issued and served on this defendant disclose that this action was brought, etc.”
The duty of the clerk to issue the summons came from the court rule and the summons issued approximated closely to the requirements of the rule. It is argued there was departure because it was not “directed” to defendant Hecht.
It does start out with an old formality of “greeting” from the President of the United States to the marshal, but that in nowise obscures its real business. It says plainly and peremptorily, “Summon * * * J. L. Hecht that he be and appear before the United States District Court for the Southern District of Iowa at Davenport, Iowa, to answer to a petition filed by the United States of America.” That is to say, the summons, regarded as a document which has to be delivered to the marshal and acted on by him, contains a traditional and formal greeting to him and commands him to perform a duty imposed on him by statute. In that oblique sense there is a summons directed to him. But in so far as it is a summons to appear in court to answer the complaint of the United States, the monition, warning or notification, the business end of the summons is directed to the defendant Hecht, clear and *929peremptory. Hecht knew very well when he got the summons to whom the monition or summons to appear and answer was directed. He knew that he was the one a complaint was filed against and that he was the one that had to appear in the court, and that was the whole meat of ■the matter. I think the sense of it is that the man who was named as the one required to appear and answer was the one who was summoned. The summons part of it was directed to him and not to the marshal. The marshal got the greeting directed to him, and Hecht got the summons directed to him, and the matter is simply quibbling. Another ground of alleged defect is that the summons failed to name the court in which the action was brought as required by the court rule. Inasmuch as the summons contained the long name of the United States District Court for the Southern District of Iowa, Davenport Division (or at Davenport, Iowa) printed in full three times, it seems to me the point ought to be regarded as frivolous.
It also appears that the summons required defendant Hecht to be and appear before the court to answer the complaint on the 27th day of October, 1931, and it is said that an early statute of Iowa fixed the answer day upon the first day of the next term of court, and a later statute fixed the second day of the term as answer day. It is said the 27th of October, 1931, was the first day of the next term of the federal court. But the summons allowed the defendant Hecht more than three months and a half 'to make his appearance and answer the complaint and that was ample time. Whether he was given a day more or a day less involved no matter of substance in view of the fact that he did appear before the day set in the summons.
I think that the summons was in such substantial compliance with the requirements of the court rule that it could not be said that there was no summons issued and served thereunder.
Under the state statute where the commencement of actions is by notice given by the plaintiff and not by petition, filed and summons issued thereon, the notice which the plaintiff must give is required to contain a characterization of the cause of action and the amount for which judgment will be taken on default. The summons issued by the clerk in this case did not of itself inform defendant what the character of the suit against him was, nor what amount of judgment would be taken in case of default. The defendant was left to find all of that in the petition against him in the court, of which petition the summons did inform him and which he was called on to answer.
Mr. Hecht’s amended motion to dismiss the case was not' brought on for hearing before the court until January, 1937. It" was then heard at the same time with a motion to amend the process which the plaintiff had filed shortly before by leave of court. The motion to amend process was verified under oath and narrated that there were constant negotiations for settlement carried on between Mr. Hecht and the plaintiff during the pendency of the case on account of which the parties had delayed trial of the case several years, and it was alleged that the plaintiff had a just cause of action against the defendant and that the defendant would suffer no prejudice or injury if the amendment was allowed.
An affidavit was filed by defendant Hecht in resistance to the motion to amend, to the effect that, if liability had been established in the government’s suit near the time when the petition in the case was filed, Mr. Hecht could have recouped himself for any judgment against him by collecting it from other defendants primarily liable, but that, on account of bankruptcy and death and other causes, such recourse had become lost. He also alleged that he had been advised by his counsel from the beginning that the statute of limitations had run against the plaintiff’s complaint and that he had relied thereon and took no action to preserve the elaims he would have had at an earlier date against other parties.
But the question whether the statute of limitation had run in the case was for the court to decide. There was no showing in the affidavit that Mr. Hecht had applied for or had been denied am earlier hearing upon that question or upon his motion to dismiss the case. The affidavit contained no suggestion that Mr. Hecht had not received the summons from the United States marshal as shown by the return of the marshal thereon; or that he had failed to read it; or that he failed to understand the command thereof to appear and answer the government’s petition at the time specified therein, or that any alleged defect in it had deceived or misled him in any way. The substance of his *930showing was merely that the delay in submitting the case to which he had himself contributed would increase» his burden if, in the judgment of the court, he owed the plaintiff the money sued for and had to pay it. -
Such considerations threw no light on the question whether the motion to amend the process, which was presented at the same time as the motion to dismiss for want of timely process, should ‘or should not be sustained. Mr. Hecht’s early motion had given the plaintiff and the court to understand that the suit had been commenced by summons served upon Mr. Hecht by the marshal, but that he was contending that it was so commenced too late (other reasons being assigned), and he had waited five years before making his argument to the court that the action was commenced by his appearance and not by summons. The parties were upon at, least an equal footing so far as allowing' the case to remain long pending was concerned. Both were acquiescent to the pendency and both moved to get a hearing of their respective claims at the same time, and by voluntarily keeping the case pending the parties preserved the rights and obligations of both alike.
The trial court did not find that the plaintiff had lost any right to amend the summons by the parties’ mutual acquiescence in the long pendency of the case. On the contrary, it duly accorded plaintiff leave to apply for the amendment after all the delay had taken place. But the court took the position that there was nothing to amend. He said the question was “whether there ever was a summons issued, and directed to the defendant,” and he answered the- question in the negative. He declared his opinion that the document issued by the clerk was a praecipe. If Hecht had sworn in his affidavit that he had paid no attention to the boldly printed “Summons” or the command to him that he appear and a¿iswer, or- that he thought there was no communication in it to him, he would not be credited. He did not presume to so swear, though $50,000 was sued for. The court simply adopted and acted upon a fiction. A fiction that not only denied the plaintiff a trial of its claim against the defendant but beclouded the court’s judgments for twenty years back.
The court’s rule (in force in 1913 and 1937, nearly a quarter of a century), the form of the summonses that were issuing out of the court, the Conformity Act, and the state system for commencing suits by notice were brought up together and presented serious questions for the court’s consideration, calling for deliberate action in the case before the court. But for the court in such a situation to adopt and to act upon the fiction that there was no sumrnons in the face of the record .that there was one, which like hundreds or thousands of others similar to it, had effectively performed the office of summons for years, struck a blow at the very foundation of rational judicature. Such action would mean that errors of clerks which in fact affect no one and are unnoticed and trifling, have a potency for wrong beyond all the court’s justice. To take up the fiction that there was no summons merely because the clerk did not write up the summons that he issued in a good clerkly fashion, undermines the foundations of jurisdiction and the-just powers of courts, It defeats and frustrates rightful judicial power to do justice. The ruling of the trial court, rested as it was on the fiction that the suit was commenced by appearanee and that there was no summons, was contrary to the Act of Congress, 28 U.S. C.A. §§ 767, 777, and was error of law' reviewable by this court. Even if the summons did lack something that the clerk ought to have put into it, the federal law does not allow the harmless slip of a clerk’s pen to wreck precarious justice, When such a clerical fault in a summons is shown to a federal court, and even though the fault has been repeated for years, the court may not act upon destructive fiction in'stead of the facts, incontinently dismiss the litigants before him, or upset the foundation of the court’s work of years. The sensible and positive command of the federal statute is not that a federal court may amend defects and want of form, but that it shall do so. The provisions of 28 U.S.C.A. § 767 are not in conflict. The court’s discretion therein referred to is legal discretion, the paramount command to the courts is to disregard defects and want of form and proceed and give judgment according to the right of the cause. That must be so upon every application to amend, including application to amend summons. Every such application presupposes some mistake has occurred. The .court’s inquiry should be, “Has any one acted on the mistake to change his position so that it would wrong him to correct the mistake ?” The court has ample powers conferred upon it to carry out and *931make effective the command to proceed and give judgment according as the right of the cause appears.
The Supreme Court of Iowa has held that each of the specific requisites which the statute of that state requires the plaintiff to put into the notice used for commencing suit is of equal rank with the others, and that the failure to include any one is as fatal as the failure to include another. The court appears to have disposed of a case where there was some clerical omission in a notice as though there never had been any notice at all. Rhodes v. Oxley, 212 Iowa 1018, 235 N.W. 919. It is argued that we are bound to follow to the same conclusion in this case, but the federal statute that compels the federal courts to correct defects and want of form in summonses, and commands the courts to proceed to give judgment according to the right, stands like a wall of good sense against it. It may be that some of the states have not accorded such statutory protection to their courts. No similar statute is cited in Iowa. But our powers impose obligations. The federal court cannot be bound to adopt a fiction that Mr. Hecht came into court of his own volition or that he was not summoned. Against all vainly elaborated abstractions that the summons lacked something that summonses ought to have in them is the plain fact that the summons was so fully adapted to do its office of calling Hecht into court that no sensible man would fail to heed it, and Hecht did not fail—he came. After he came he acknowledged in his motion that summons had been issued and served upon him. Such was the, fact. The other is fiction.
As to the decision of this court in United States v. Van Dusen, 8 Cir., 78 F.2d 121. That opinion sustained an order of the District Court in Minnesota quashing summons, but it does not appear that the action of this court affected substantial rights. So far as appears, nothing resulted from quashing the summons except an effective admonition to the clerk and the issuance of better summons.' The summons in that case was not delivered by the United States marshal into the hands of the defendant as in this case. And the controlling question in this case, whether to amend the summons, was not considered or decided. This court’s consideration of the case was apparently not directed to the inquiry whether the summons involved in the case was adapted to and had performed its office, but rather to abstract discussion concerning what might constitute substance as distinguished from form in a summons. Without declaration upon any substantial right or consideration of the power to amend, the conclusion was expressed that putting the amount sued for into a summons was matter of substance rather than of form. Considered abstractly, of course every statutory requirement is of substance. But if the necessary inference from the case is that, unless some particular “substance” is found in a summons adapted to work and which has worked, the court must act on the fiction that there never was any summons at all, it should be modified in a proper case.
But our question here is as to amendment More than thirty years ago this court established for this circuit the sound doctrine concerning summonses and defects therein which it is absolutely necessary to adhere to. It was laid down that it is “the special office of a summons * * * to inform a defendant that an action has been instituted against him,” and that where the summons has performed its function the court is required to disregard any defect or omission of words which do not affect the substantial rights of the defendant. Ammons v. Brunswick-Balke-Collender Co., 8 Cir., 141 F. 570. The inquiry and the only inquiry in the federal court under the federal statute is, what is the right of the case. If a man has in fact been summoned and so understands and obeys, every defect must be amended on timely application and justice done by according a fair trial of, the case.
The case here is that the plaintiff invoked the justice of the court in the mode directed by the court’s ancient rule. Through no fault of the plaintiff, but solely from the fault of the court officers, the summons failed of itself to acquaint the defendant with some of the incidents of the plaintiff’s petition.2 But it was a *932truthful call to the defendant and in response to it he came into court where the petition itself was. 'He was not affected by any informality. It is not compatible with a rational administration of justice so near the middle of the twentieth cen-' tury to turn the innocent litigant out of court upon a mere fiction, or to deny it a trial of its case. Such denial of justice violates the federal acts and should be reversed.
1. All process shall run in the name of the President of the United States of America, be signed by the clerk and issued under the seal of the court.
2. All writs and process, including the summons, shall bear teste the day they are issued, shall be issued, signed, and sealed by the clerk, upon a praecipe in writing, duly signed and filed by the party, or his attorney, desiring the issuanee thereof, and shall have the name of the attorney of the party at whose instance they are issued indorsed thereon.
3. The summons shall he delivered by the clerk directly to the marshal for service and shall be served by the marshal in the manner then prescribed by the state statutes. Upon the service of the summons the marshal shall file the same in the office of the clerk, with his
return attached thereto, 4. Actions at law shall be commenced by filing a petition with the clerk upon which a summons shall be issued directed to the defendant, informing him of the name of the plaintiff, that petition has been filed in the office of the clerk of the court wherein the action is brought, naming it. Except as otherwise provided in these rules, and except as provided for in the laws of the United States in force at the time action is sought to be taken in this court, pleadings and practice and procedure, both before and after judgment, shall be as then prescribed in the laws of the state of Iowa.
The Supreme Court has just established summonses for universal use in this respect identical with, and generally about like the summons we hold to be nonexistent and not amendable. Their’s has a warning in it that in ease of default judgment will be rendered as prayed in the complaint, but the warning is not serious because the ad damnums prayed for are usually too preposterous to be put into judgments if defendants never come. Rules of Civil Procedure, rule 4 (b).