Blacks Law - 4th Edition
PROCESS
PROCESS. A series of actions, motions, or occurrences;
progressive act or transaction; continuous
operation; method, mode or operation,
whereby a result or effect is produced; normal or
actual course of procedure; regular proceeding,
as, the process of vegetation or decomposition; a
chemical process; processes of nature. Sokol v.
Stein Fur Dyeing Co., 216 App.Div. 573, 216 N.Y.S.
167, 169; Kelley v. Coe, App.D.C., 99 F.2d 435, 441.
Practice
This word is generally defined to be the means
of compelling the defendant in an action to appear
in court; Gondas v. Gondas, 99 N.J.Eq. 473, 134
A. 615, 618; or a means whereby a court compels
a compliance with its demands. Frank Adam
Electric Co. v. Witman, 16 Ga.App. 574, 85 S.E.
819, 820. Stevens v. Associated Mortg. Co. of New
Jersey, 107 N.J.Eq. 297, 152 A. 461, 462. And
when actions were commenced by original writ,
instead of, as at present, by writ of summons, the
method of compelling the defendant to appear was
by what was termed "original process," being
founded on the original writ, and so called also
to distinguish it from "mesne" or "intermediate"
process, which was some writ or process which
issued during the progress of the suit. The word
"process," however, as now commonly understood,
signifies those formal instruments called "writs."
The word "process" is in common-law practice
frequently applied to the writ of summons, which
is the instrument now in use for commencing
personal actions. Farmers' Implement Co. of Hallock,
Minn., v. Sandberg, 132 Minn. 389, 157 N.W.
642. But in its more comprehensive signification
it includes not only the writ of summons, but all
other writs which may be issued during the progress
of an action. Those writs which are used
to carry the judgments of the courts into effect,
and which are termed "writs of execution" are
also commonly denominated "final process," because
they usually issue at the end of a suit.
Anderson v. Dewey, 91 Conn. 510, 100 A. 99, 100.
A writ, summons, or order issued in a judicial proceeding
to acquire jurisdiction of a person or his property, to
expedite the cause or enforce the judgment. Royal Exchange
Assurance of London v. Bennettsville & C. R. Co.,
95 S.C. 375, 79 S.E. 104, 105. A writ or summons issued in
the course of judicial proceedings. Radovich v. French, 36
Nev. 341, 135 P. 920, 921. The term in statutes may be
used with the meaning of procedure. Safford v. United
States, C.C.A.N.Y., 252 F. 471, 472.
In the practice of the English privy council in
ecclesiastical appeals, "process" means an official
copy of the whole proceedings and proofs of the
court below, which is transmitted to the registry
of the court of appeal by the registrar of the court
below in obedience to an order or requisition requiring
him so to do, called a "monition for process,"
issued by the court of appeal. Macph. Jud.
Com. 173.
Abuse of process. See Abuse.
Compulsory process. See Compulsory,
Executory process. In the law of Louisiana, a
summary process in the nature of an order of
seizure and sale, which is available when the right
of the creditor arises from an act or instrument
which includes or imports a confession of judgment
and a privilege or lien in his favor, and also
to enforce the execution of a judgment rendered
in another jurisdiction. Code Prac. art. 732.
Final process. The last process in a suit; that
is, writs of execution. Thus distinguished from
mesne process, which includes all writs issued
during the progress of a cause and before final
judgment. Collier v. Blake, 16 Ga.App. 382, 85
S.E. 354. A distress warrant is final process, unless
arrested by the interposition of a counter
affidavit. Long v. Clark, 16 Ga.App. 355, 85 S.E.
358.
Irregular process. Sometimes defined to mean
process absolutely void, and not merely erroneous
and voidable; but that term is usually applied
to all process not issued in strict conformity with
the law, whether the defect appears upon the face
of the process, or by reference to extrinsic facts,
and whether such defects render the process absolutely
void or only voidable. And see Bryan v.
Congdon, 86 F. 221, 29 C.C.A. 670.
Judicial process. In a wide sense, this term
may include all the acts of a court from the beginning
to the end of its proceedings in a given
cause; but more specifically it means the writ,
summons, mandate, or other process which is used
to inform the defendant of the institution of
proceedings against him and to compel 'his appearance,
in either civil or criminal cases. Blair
v. Maxbass Security Bank of Maxbass, 44 N.D.
12, 176 N.W. 98, 100; In re Smith & Shuck, D.C.
Iowa, 132 F. 301, 303.
Legal process. This term is sometimes used as
equivalent to "lawful process." Cooley v. Davis,
34 Iowa 130. Thus, it is said that legal process
means process not merely fair on its face, but in
fact valid. State v. Wagoner, 123 Kan. 586, 256
P. 959, 960. But properly it means a writ, warrant,
mandate, or other process issuing from a
court of justice, such as an attachment, execution,
injunction, etc. Grossman v. Weiss, 221 N.
Y.S. 266, 267, 129 Misc. 234.
Mesne . process. As distinguished from final
process, this signifies any writ or process issued
between the commencement of the action and the
suing out of execution. 3 Bla.Comm. 279. This
is substantially the meaning of the term as used
in admiralty rule 1 (29 S.Ct. xxxix; 28 U.S.C.A. §§
2071, 2073), providing that no mesne process shall
issue until the libel shall be filed in the clerk's
office. The City of Philadelphia, D.C.Pa., 263 F.
234, 235. "Mesne" in this connection may be defined
as intermediate; intervening; the middle
between two extremes. L. N. Dantzler Lumber
Co. v. Texas & P. Ry. Co., 119 Miss. 328, 80 So.
770, 775, 49 A.L.R. 1669. Mesne process includes
the writ of summons, (although that is now the
usual commencement of actions,) because anciently
that was preceded by the original writ. The
writ of capias ad respondendum was called
"mesne" to distinguish it, on the one hand, from
the original process by which a suit was formerly
commenced; and, on the other, from the final
process of execution. Birmingham Dry Goods
Co. v. Bledsoe, 21 So. 403, 113 Ala. 418.
Original process. That by which a judicial
proceeding is instituted; process to compel the
appearance of the defendant. Distinguished from
"mesne" process, which issues, during the progress
of a suit, for some subordinate or collateral
purpose; and from "final" process, which is
process of execution. Appeal of Hotchkiss, 32
Conn. 353.
Process of interpleader. A means of determining
the right to property claimed by each of two
or more persons, which is in the possession of a
third.
Process of law. See Due Process of Law.
Process roll. In practice. A roll used for the
entry of process to save the statute of limitations.
1 Tidd, Pr. 161, 162.
Regular process. Such as is issued according
to rule and the prescribed practice, or which emanates,
lawfully and in a proper case, from a court
or magistrate possessing jurisdiction.
Summary process. Such as is immediate or
instantaneous, in distinction from the ordinary
course, by emanating and taking effect without
intermediate applications or delays. Gaines v.
Travis, 8 N.Y.Leg.Obs. 49.
Trustee process. The name given in some
states (particularly in New England) to the process
of garnishment or foreign attachment.
Void process. Such as was issued without power
in the court to award it, or which the court
had not acquired jurisdiction to issue in the particular
case, or which fails in some material respect
to comply with the requisite form of legal
process. Bryan v. Congdon, C.C.A.Kan., 86 F.
221, 223, 29 C.C.A. 670.
PROCESS. A series of actions, motions, or occurrences;
progressive act or transaction; continuous
operation; method, mode or operation,
whereby a result or effect is produced; normal or
actual course of procedure; regular proceeding,
as, the process of vegetation or decomposition; a
chemical process; processes of nature. Sokol v.
Stein Fur Dyeing Co., 216 App.Div. 573, 216 N.Y.S.
167, 169; Kelley v. Coe, App.D.C., 99 F.2d 435, 441.
Practice
This word is generally defined to be the means
of compelling the defendant in an action to appear
in court; Gondas v. Gondas, 99 N.J.Eq. 473, 134
A. 615, 618; or a means whereby a court compels
a compliance with its demands. Frank Adam
Electric Co. v. Witman, 16 Ga.App. 574, 85 S.E.
819, 820. Stevens v. Associated Mortg. Co. of New
Jersey, 107 N.J.Eq. 297, 152 A. 461, 462. And
when actions were commenced by original writ,
instead of, as at present, by writ of summons, the
method of compelling the defendant to appear was
by what was termed "original process," being
founded on the original writ, and so called also
to distinguish it from "mesne" or "intermediate"
process, which was some writ or process which
issued during the progress of the suit. The word
"process," however, as now commonly understood,
signifies those formal instruments called "writs."
The word "process" is in common-law practice
frequently applied to the writ of summons, which
is the instrument now in use for commencing
personal actions. Farmers' Implement Co. of Hallock,
Minn., v. Sandberg, 132 Minn. 389, 157 N.W.
642. But in its more comprehensive signification
it includes not only the writ of summons, but all
other writs which may be issued during the progress
of an action. Those writs which are used
to carry the judgments of the courts into effect,
and which are termed "writs of execution" are
also commonly denominated "final process," because
they usually issue at the end of a suit.
Anderson v. Dewey, 91 Conn. 510, 100 A. 99, 100.
A writ, summons, or order issued in a judicial proceeding
to acquire jurisdiction of a person or his property, to
expedite the cause or enforce the judgment. Royal Exchange
Assurance of London v. Bennettsville & C. R. Co.,
95 S.C. 375, 79 S.E. 104, 105. A writ or summons issued in
the course of judicial proceedings. Radovich v. French, 36
Nev. 341, 135 P. 920, 921. The term in statutes may be
used with the meaning of procedure. Safford v. United
States, C.C.A.N.Y., 252 F. 471, 472.
In the practice of the English privy council in
ecclesiastical appeals, "process" means an official
copy of the whole proceedings and proofs of the
court below, which is transmitted to the registry
of the court of appeal by the registrar of the court
below in obedience to an order or requisition requiring
him so to do, called a "monition for process,"
issued by the court of appeal. Macph. Jud.
Com. 173.
Abuse of process. See Abuse.
Compulsory process. See Compulsory,
Executory process. In the law of Louisiana, a
summary process in the nature of an order of
seizure and sale, which is available when the right
of the creditor arises from an act or instrument
which includes or imports a confession of judgment
and a privilege or lien in his favor, and also
to enforce the execution of a judgment rendered
in another jurisdiction. Code Prac. art. 732.
Final process. The last process in a suit; that
is, writs of execution. Thus distinguished from
mesne process, which includes all writs issued
during the progress of a cause and before final
judgment. Collier v. Blake, 16 Ga.App. 382, 85
S.E. 354. A distress warrant is final process, unless
arrested by the interposition of a counter
affidavit. Long v. Clark, 16 Ga.App. 355, 85 S.E.
358.
Irregular process. Sometimes defined to mean
process absolutely void, and not merely erroneous
and voidable; but that term is usually applied
to all process not issued in strict conformity with
the law, whether the defect appears upon the face
of the process, or by reference to extrinsic facts,
and whether such defects render the process absolutely
void or only voidable. And see Bryan v.
Congdon, 86 F. 221, 29 C.C.A. 670.
Judicial process. In a wide sense, this term
may include all the acts of a court from the beginning
to the end of its proceedings in a given
cause; but more specifically it means the writ,
summons, mandate, or other process which is used
to inform the defendant of the institution of
proceedings against him and to compel 'his appearance,
in either civil or criminal cases. Blair
v. Maxbass Security Bank of Maxbass, 44 N.D.
12, 176 N.W. 98, 100; In re Smith & Shuck, D.C.
Iowa, 132 F. 301, 303.
Legal process. This term is sometimes used as
equivalent to "lawful process." Cooley v. Davis,
34 Iowa 130. Thus, it is said that legal process
means process not merely fair on its face, but in
fact valid. State v. Wagoner, 123 Kan. 586, 256
P. 959, 960. But properly it means a writ, warrant,
mandate, or other process issuing from a
court of justice, such as an attachment, execution,
injunction, etc. Grossman v. Weiss, 221 N.
Y.S. 266, 267, 129 Misc. 234.
Mesne . process. As distinguished from final
process, this signifies any writ or process issued
between the commencement of the action and the
suing out of execution. 3 Bla.Comm. 279. This
is substantially the meaning of the term as used
in admiralty rule 1 (29 S.Ct. xxxix; 28 U.S.C.A. §§
2071, 2073), providing that no mesne process shall
issue until the libel shall be filed in the clerk's
office. The City of Philadelphia, D.C.Pa., 263 F.
234, 235. "Mesne" in this connection may be defined
as intermediate; intervening; the middle
between two extremes. L. N. Dantzler Lumber
Co. v. Texas & P. Ry. Co., 119 Miss. 328, 80 So.
770, 775, 49 A.L.R. 1669. Mesne process includes
the writ of summons, (although that is now the
usual commencement of actions,) because anciently
that was preceded by the original writ. The
writ of capias ad respondendum was called
"mesne" to distinguish it, on the one hand, from
the original process by which a suit was formerly
commenced; and, on the other, from the final
process of execution. Birmingham Dry Goods
Co. v. Bledsoe, 21 So. 403, 113 Ala. 418.
Original process. That by which a judicial
proceeding is instituted; process to compel the
appearance of the defendant. Distinguished from
"mesne" process, which issues, during the progress
of a suit, for some subordinate or collateral
purpose; and from "final" process, which is
process of execution. Appeal of Hotchkiss, 32
Conn. 353.
Process of interpleader. A means of determining
the right to property claimed by each of two
or more persons, which is in the possession of a
third.
Process of law. See Due Process of Law.
Process roll. In practice. A roll used for the
entry of process to save the statute of limitations.
1 Tidd, Pr. 161, 162.
Regular process. Such as is issued according
to rule and the prescribed practice, or which emanates,
lawfully and in a proper case, from a court
or magistrate possessing jurisdiction.
Summary process. Such as is immediate or
instantaneous, in distinction from the ordinary
course, by emanating and taking effect without
intermediate applications or delays. Gaines v.
Travis, 8 N.Y.Leg.Obs. 49.
Trustee process. The name given in some
states (particularly in New England) to the process
of garnishment or foreign attachment.
Void process. Such as was issued without power
in the court to award it, or which the court
had not acquired jurisdiction to issue in the particular
case, or which fails in some material respect
to comply with the requisite form of legal
process. Bryan v. Congdon, C.C.A.Kan., 86 F.
221, 223, 29 C.C.A. 670.
