The language of the law. Part Latin, part Anglo-Saxon, all confusing.
It’s a phrase The Legal Genealogist sees only too often in court records everywhere.
“Continued, no service of process having been had.”
It came up most recently in the records of my scoundrel second great-grandfather George. In these particular court records, in Colorado County, Texas, George had been indicted for assault and battery. In the first indictment, in March 1847, he was accused of assault and battery “with force and arms … upon one Frederick Kayser”.1 In the second indictment, also in early 1847, he was charged with assault and battery, “with force and arms … upon one August Rolf.”2
In both cases, warrants were issued for his arrest,3 but in the court minutes of Colorado County all through 1848, 1849, and into 1850, the records noted that the case had been “continued – no service of process having been had.”4
What exactly does that mean?
Now in this context, the word “continued” here has its ordinary meaning.
Oh, we can go to the law dictionary if you insist, and it will tell us that a continuance is the “adjournment or postponement of an action pending in a court, to a subsequent day of the same or another term.”5
Or, the dictionary definition continues, it is also “the entry of a continuance made upon the record of the court, for the purpose of formally evidencing the postponement, or of connecting the parts of the record so as to make one continuous whole.”6
But, hey — realistically — we could have figured that out by ourselves.
It’s that “service of process” bit that takes a bit of understanding.
First of all, we need to understand exactly what these records mean by “process.” That’s a term in the law that doesn’t quite mean the same thing we find in an ordinary dictionary (“a series of actions or operations conducing to an end; especially : a continuous operation or treatment especially in manufacture”7).
No, in the law, it has a very particular meaning. In the law:
This word is generally deemed to be the means of compelling the defendant in an action to appear in court. 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. 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.8
Or, in plain English, it’s the summons, mandate, or writ used by a court to make the defendant come into court in a legal action or comply with its orders.
But that’s only half of that phrase. What the heck is “service” in this context?
According to the law dictionary, service of process “signifies the delivering to or leaving them with the party to whom or with whom they ought to be delivered or left; and, when they are so delivered, they are then said to have been served. Usually a copy only is served and the original is shown.”9
And there were rules that had to be complied with in delivering those legal papers to the person named in them, or leaving them with someone else on that person’s behalf. In some cases, only actual physical delivery to the person named in the process was good enough to qualify as service of process. That was the situation in George’s case: the only effective way to serve process in that kind of a criminal case was to arrest the defendant, to take him into custody. And the State of Texas never managed to find and arrest George on those assault and battery charges.
In other cases, however, the law will allow service of process by leaving a copy of the document with another person, generally a member of the named person’s household who was 14 years old or older. And in some cases the defendant could even be served by publishing a notice in the newspapers.10
The specifics on who could receive the document –- how old that person had to be, or what relationship to the named individual — was a matter of the law and that particular jurisdiction — and remember, those laws will change from time to time.
As a result, you’ll see a lot of arguments in the court records about service of process: not just about whether certain process was ever served but whether the process was served properly. Those kinds of arguments are great for genealogists because they often disclose relationships among individuals — for our purposes, when one person is identified as not being closely enough related to the named individual, it’s almost as good as when he is identified as being closely enough related.
So don’t overlook the discussions of service of process. If it was never served, that’ll explain why the case didn’t go any further — and may well have ultimately been dismissed. If it was served but served wrongly, you may get some great information about who’s who around your target individual. And if it was served properly, you’ve then got a court case to follow.
Serving up that process can serve our needs in more ways than one.
- Colorado County, Texas, District Court Criminal Case File No. 488, State v. George W. Cotrel, 30 March 1847; District Court Clerk’s Office, Columbus. ↩
- Ibid., District Court Criminal Case File No. 489, State v. George W. Cotrel, 30 March 1847. ↩
- Colorado County, Texas, District Court Trial Docket Book, 1844-49, State Docket, Fall Term 1847, entries for cases 5-6, State v. G. W. Cottrell; District Clerk’s Office, Columbus. ↩
- Ibid. See also Colorado Co. District Court Minute Book A-B: 356, 375, 401. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 265, “continuance.” ↩
- Ibid. ↩
- Merriam-Webster Online Dictionary (http://www.m-w.com : accessed 4 Jan 2017), “process.” ↩
- Black, A Dictionary of Law, 947, “process.” ↩
- Ibid., 1083, “service of process.” ↩
- See e.g. Articles 405-423, Institution of Suits – Service of Process, in A General Digest of the Statute Laws of the State of Texas (Austin : John Marshall & Co., 1859); digital images, Google Books (http://books.google.com : accessed 4 Jan 2017). ↩