Rule 4 of the Federal Rules of Civil Procedure

According to federal law: 28 U.S. Code § 1691.Seal and teste of process

All writs and process issuing from a court of the United States shall be under the seal of the court and signed by the clerk thereof.

(June 25, 1948, ch. 646, 62 Stat. 945.)

However, the Historical and Revision Notes, to that section provide the following:

Based on title 28, U.S.C., 1940 ed., § 721 (R.S. § 911; Mar. 3, 1911, ch. 231, § 291, 36 Stat. 1167).

Provisions as to teste of process issuing from the district courts were omitted as superseded by Rule 4 (b) of the Federal Rules of Civil Procedure. Provision for teste of the Chief Justice of writs and process was omitted as unnecessary.

A provision requiring the United States to bear the expense of providing seals was omitted as unnecessary and obsolete.

Changes were made in phraseology.

Therefore we need to look at Rule 4(b), which states:

(b) Issuance. On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons—or a copy of a summons that is addressed to multiple defendants—must be issued for each defendant to be served.

The similarities between California Code of Civil Procedure Section 412.20(a) and Rule 4 are worth noting:

https://www.law.cornell.edu/rules/frcp/rule_4

Rule 4 can be used in any state in light of the following:

"The statutory law of the United States is part of the law of each state just as if it were written into state statutory law. (Hauenstein v. Lynham (1880) 100 U.S. 483, 490 [25 L. Ed. 628, 630-631]; People ex rel. Happell v. Sischo (1943) 23 Cal. 2d 478, 491 [144 P.2d 785, 150 A.L.R. 1431].)” People v. Barajas (1978), 147 Cal. Rptr 195.

Formality in Authentication - Signature and Seal

Federal and State Law

Formality in Authentication

Points to consider

When doing the abatement you must keep an eye on what is going on in the court. I cannot emphasis enough the importance of being pro-active. There is no magic bullet. I am adding a Motion to Quash and the specific codes to use for three writ processes for those that are not ready for an abatement. In regards to the writs, the main points are that the clerk owes a duty to seal the summons; there is a duty on the judge to have the correct seal; and there is a duty on the sheriff to serve facially valid process.

The other major point I want you to consider is that all of these tactics are just buying you time. This particular tactic could buy you several months. We all thought one more piece of paper and we would win. IMHO - the only way to win this game is to tip up the board and stop playing their game!

Motion to Quash

APP 151

Writ process against the clerk

For a sample of answers for the writ process against the clerk you will need the following code sections (the numbers on the left correspond with APP 151, available above)

10.(a)(1) The trial court must have a seal, the written specifications of what the court seal must look like are defined by the legislature, that seal must be affixed to a summons; a summons must be directed to the defendant and signed by the clerk and issued under the seal of the court in which the action is pending

10(a)(2) California Government Code Secs. 68074; 68076; 68080; California Code of Civil Procedure Secs. 14, 153, 412.20 (a), 1010(b)(5) and [Aetna] Insurance Company vs. Hallock, 73 U.S. 556 (1868)

10(a)(3) Summons’ served on defendants evidences no seal attached. A certified copy of the summons from the courts file evidences a seal that is 3/16" smaller than the one defined by the legislature; and wording is not in upper and lower case as provided for by

10(c)(1) The trial court has determined my rights under the law without subject matter jurisdiction. I do not recognize this court as the one that is created under the California Constitution and having a seal that is defined by the legislature

10(c)(2) The trial court denied my Motion to Quash Summons without correcting the courts process. In effect there is no process.

10(c)(3) [Aetna] Insurance Company vs. Hallock, 73 U.S. 556 (1868); “No officer can acquire jurisdiction by deciding he has it. The officer, whether judicial or ministerial, decides at his own peril.” Middleton v. Low, 30 C. 596 (1866)

11. Writ of Mandate is the only option available to the petitioner. There is no plain, speedy or adequate remedy available.

Writ process against the judge

The focus here is the judges duty that can be found at:

California Government Code Sec. 68076, which states: The seals of the superior courts shall: (a) Be circular. (b) Be not less than one and one-fourth inches in diameter. Fact: California (c) Have in the center any word, words, or design adopted by the judges of the superior court. (d) Have inscribed around the central words or design “Superior Court of California, County of [___]”, inserting the name of the county. The seal of any such court, which has been adopted before April 1, 1880, shall be the seal of such court until another is adopted.

California Government Code Sec. 68079, which states that: A court for which the necessary seal has not been provided, or the judges of that court, shall provide it. The expense shall be an item of court operations.

Writ process against the sheriff

The focus here is the sheriffs duty that can be found at:

California Government Code Sec. 26608, which states: The sheriff shall serve all process and notices in the manner prescribed by law.

California Code of Civil Procedure Sec. 262.1, which states: A sheriff or other ministerial officer is justified in the execution of, and shall execute, all process and orders regular on their face and issued by competent authority, whatever may be the defect in the proceedings upon which they were issued.