A-30539, MARCH 6, 1930, 9 COMP. GEN. 383

A-30539: Mar 6, 1930

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WHERE THE PERSON NAMED IN THE WRIT RESIDES AT A PLACE ELSEWHERE THAN AT THE PLACE WHERE COURT IS HELD. REIMBURSEMENT OF TRAVEL EXPENSES INCURRED BY A DEPUTY MARSHAL IN CARRYING OUT A SPECIAL ORDER TO MAKE PERSONAL SERVICE OF SUCH A WRIT IS AUTHORIZED. WHEREBY CREDIT WAS DISALLOWED FOR THE AMOUNT OF $7.76 PAID ON VOUCHER 4 OF HIS ACCOUNT FOR THE QUARTER ENDED SEPTEMBER 30. THE RECORDS SHOW THAT THE WRIT IN QUESTION WAS MAILED TO W. THERE WAS ATTACHED TO THE VOUCHER OF DEPUTY MARSHAL BOBOLSKY IN SUPPORT OF HIS CLAIM FOR REIMBURSEMENT OF THE EXPENSES INCURRED IN MAKING PERSONAL SERVICE OF THE WRIT. THAT HEREAFTER WHENEVER THE SUMMONS FOR ANY GRAND OR PETIT JUROR UPON WHOM SERVICE IS ATTEMPTED TO BE MADE BY MAIL IS RETURNED BY THE POSTMASTER.

A-30539, MARCH 6, 1930, 9 COMP. GEN. 383

TRAVELING EXPENSES - DEPUTY MARSHALS - PERSONAL SERVICE OF WRITS THE PROVISIONS OF SEC. 279 OF THE JUDICIAL CODE, 36 STAT. 1165, PROVIDING THAT SERVICE OF WRITS OF VENIRE FACIAS BY REGISTERED MAIL, WHERE THE PERSON NAMED IN THE WRIT RESIDES AT A PLACE ELSEWHERE THAN AT THE PLACE WHERE COURT IS HELD, SHALL BE REGARDED AS PERSONAL SERVICE, DO NOT PRECLUDE PERSONAL SERVICE ON JURORS WHEN DELIVERY CAN NOT BE EFFECTED BY REGISTERED MAIL. REIMBURSEMENT OF TRAVEL EXPENSES INCURRED BY A DEPUTY MARSHAL IN CARRYING OUT A SPECIAL ORDER TO MAKE PERSONAL SERVICE OF SUCH A WRIT IS AUTHORIZED.

DECISION BY ACTING COMPTROLLER GENERAL GINN, MARCH 6, 1930:

UNITED STATES MARSHAL SAMUEL J. LEAPHART ON DECEMBER 16, 1929, APPLIED FOR REVIEW OF SETTLEMENT K-42833-J, DATED APRIL 20, 1929, WHEREBY CREDIT WAS DISALLOWED FOR THE AMOUNT OF $7.76 PAID ON VOUCHER 4 OF HIS ACCOUNT FOR THE QUARTER ENDED SEPTEMBER 30, 1926, TO DEPUTY MARSHAL A. J. BOBOLSKY IN REIMBURSEMENT OF EXPENSES INCURRED ON SEPTEMBER 24, 1926, IN TRAVELING FROM COLUMBIA TO SUMTER, S.C., AND RETURN, FOR THE PURPOSE OF MAKING PERSONAL SERVICE OF A WRIT OF VENIRE FACIAS ON W. E. DURANT, COMMANDING HIS ATTENDANCE AS A PETIT JUROR UPON THE OCTOBER, 1926, TERM OF THE UNITED STATES DISTRICT COURT TO BE HELD AT CHARLESTON, S.C.

THE RECORDS SHOW THAT THE WRIT IN QUESTION WAS MAILED TO W. E. DURANT AT SUMTER ON SEPTEMBER 10, 1926, DEPUTY MARSHAL L. C. HENDRICKS HAVING BEEN REIMBURSED 20 CENTS FOR POSTAGE AND REGISTRY FEE FOR SUCH SERVICE. THERE WAS ATTACHED TO THE VOUCHER OF DEPUTY MARSHAL BOBOLSKY IN SUPPORT OF HIS CLAIM FOR REIMBURSEMENT OF THE EXPENSES INCURRED IN MAKING PERSONAL SERVICE OF THE WRIT, AN UNCERTIFIED COPY OF THE FOLLOWING COURT ORDER OF DECEMBER 28, 1925:

ORDERED, THAT HEREAFTER WHENEVER THE SUMMONS FOR ANY GRAND OR PETIT JUROR UPON WHOM SERVICE IS ATTEMPTED TO BE MADE BY MAIL IS RETURNED BY THE POSTMASTER, OR NOT DELIVERED TO OR RECEIVED BY SUCH JUROR FOR ANY REASON, OR WHENEVER IT APPEARS THAT SERVICE CAN NOT BE MADE UPON ANY SUCH JUROR BY MAIL, THE MARSHAL OF THIS COURT SHALL FORTHWITH PROCEED TO MAKE DUE AND DILIGENT SEARCH AND INQUIRY FOR SUCH JUROR AND SERVE THE SAID JUROR PERSONALLY WITH THE SUMMONS.

ERNEST F. COCHRAN,

U.S. DISTRICT JUDGE CHARLESTON, S.C., DECEMBER 28, 1925.

IT APPEARS FROM VOUCHER 201, ON WHICH HE WAS PAID FEES AS JUROR, THAT MR. DURANT, IN RESPONSE TO THE SUMMONS, ATTENDED AS A PETIT JUROR AT CHARLESTON ON OCTOBER 10 TO 14, 1926.

CREDIT FOR THE EXPENSES INCURRED BY DEPUTY MARSHAL BOBOLSKY IN MAKING PERSONAL SERVICE OF THE JULY SUMMONS WAS DISALLOWED UNDER SEC. 279 OF THE JUDICIAL CODE, 36 STAT. 1165, WHICH PROVIDES:

WRITS OF VENIRE FACIAS, WHEN DIRECTED BY THE COURT, SHALL ISSUE FROM THE CLERK'S OFFICE, AND SHALL BE SERVED AND RETURNED BY THE MARSHAL IN PERSON, OR BY HIS DEPUTY; * * *. ANY PERSON NAMED IN SUCH WRIT WHO RESIDES ELSEWHERE THAN AT THE PLACE AT WHICH THE COURT IS HELD SHALL BE SERVED BY THE MARSHAL MAILING A COPY THEREOF TO SUCH PERSON COMMANDING HIM TO ATTEND AS A JUROR AT A TIME AND PLACE DESIGNATED THEREIN, WHICH COPY SHALL BE REGISTERED AND DEPOSITED IN THE POST OFFICE ADDRESSED TO SUCH PERSON AT HIS USUAL POST-OFFICE ADDRESS. AND THE RECEIPT OF THE PERSON SO ADDRESSED FOR SUCH REGISTERED COPY SHALL BE REGARDED AS PERSONAL SERVICE OF SUCH WRIT UPON SUCH PERSON, AND NO MILEAGE SHALL BE ALLOWED FOR THE SERVICE OF SUCH PERSON. THE POSTAGE AND REGISTRY FEE SHALL BE PAID BY THE MARSHAL AND ALLOWED HIM IN THE SETTLEMENT OF HIS ACCOUNTS.

IN LETTER OF JANUARY 28, 1920, THE MARSHAL STATES, IN FURTHER EXPLANATION OF THE MATTER:

* * * THE SUMMONS ADDRESSED TO W. E. DURANT WAS RETURNED BY THE POSTMASTER AT SUMTER WITH THE STATEMENT "REFUSED" OR "UNCLAIMED.' JUDGE E. F. COCHRAN, PRESIDING IN THIS DISTRICT, UPON BEING ADVISED OF THE FACT IN THIS MATTER, INSTRUCTED ME TO HAVE THIS SUMMONS SERVED PERSONALLY BECAUSE IT WAS EVIDENT THAT THE JUROR NAMED WAS ATTEMPTING TO EVADE SERVICE, AND CONFORMING WITH THE JUDGE'S INSTRUCTIONS I ORDERED DEPUTY A. J. BOBOLSKY TO PROCEED AND PERFORM PERSONAL SERVICE ON MR. W. E. DURANT, WHICH HE FORTHWITH DID AT AN EXPENSE OF $7.76.

AT THE TIME THAT JUDGE COCHRAN GAVE THE INSTRUCTIONS TO SERVE PERSONALLY HE DID NOT ISSUE A WRITTEN ORDER BUT ORALLY INSTRUCTED THE SERVICE AS PERFORMED.

THE SUMMONS WAS RECEIVED BY DEPUTY BOBOLSKY IN COLUMBIA ON SEPT. 21, 1926. AN ORDER OF COURT WAS SUBSEQUENTLY ISSUED ON DEC. 17, 1929, ORDERING THE REIMBURSEMENT OF ANY EXPENSE INCURRED.

THERE WAS NO ACTION TAKEN BY THE COURT AGAINST MR. DURANT, INASMUCH AS HE DID APPEAR AS A JUROR AND HE COULD NOT HAVE BEEN POSITIVE OF THE CONTENTS OF THE REGISTERED LETTER AS HE NEVER SAW THE CONTENTS OF SAME.

THE PROVISIONS OF SEC. 279 OF THE JUDICIAL CODE, SUPRA, AFTER PROVIDING GENERALLY THAT A JUROR SHALL BE PERSONALLY SERVED BY THE MARSHAL, FURTHER PROVIDES THAT IN CASES WHERE THE PERSON NAMED IN THE RETURN RESIDES AT A DISTANT PLACE SERVICE SHALL BE BY REGISTERED MAIL. WHERE SERVICE IS BY MAIL, THE COST OF POSTAGE AND REGISTRY FEE, BUT NO MILEAGE, IS AUTHORIZED FOR ALLOWANCE TO THE MARSHAL ON ACCOUNT OF SUCH SERVICE. HOWEVER, THE PROVISIONS OF THIS SECTION DO NOT PROHIBIT PERSONAL SERVICE OF JURORS WHEN RESIDING ELSEWHERE THAN AT THE PLACE WHERE COURT IS HELD WHEN DELIVERY OF THE WRIT SENT BY REGISTERED MAIL CAN NOT BE EFFECTED, BUT IT DOES PRECLUDE REIMBURSEMENT OF EXPENSES INCURRED FOR PERSONAL SERVICE IN SUCH CASES WHEN NO EFFORT IS MADE TO EFFECT SERVICE BY MAIL. 19 COMP. DEC. 339.

WHERE A JURY SUMMONS SENT BY REGISTERED MAIL IS RETURNED BECAUSE THE ADDRESSEE CAN NOT BE FOUND, THE MARSHAL WOULD NOT BE AUTHORIZED ON HIS OWN MOTION, TO INCUR THE EXPENSE OF TRYING TO EFFECT PERSONAL SERVICE, BUT IN THE PRESENT CASE, THE COURT, SUSPECTING THAT THE ADDRESSEE HAD REFUSED THE REGISTERED MAIL SUMMONS IN AN ATTEMPT TO EVADE JURY SERVICE, ORDERED THE MARSHAL TO MAKE PERSONAL SERVICE OF THE WRIT. UNDER SUCH CIRCUMSTANCES THE MARSHAL IS ENTITLED TO CREDIT IN HIS ACCOUNTS FOR THE AMOUNT OF THE EXPENSE INCURRED IN EFFECTING THE SPECIAL ORDER TO MAKE PERSONAL SERVICE OF THE WRIT.

UPON REVIEW, THE SUM OF $7.76 IS CERTIFIED FOR CREDIT IN THE MARSHAL'S ACCOUNTS.