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PART TWO
OFFENSIVE PLEADING—GENERAL
CONSIDERATIONS

CHAPTER 3


THE COMMENCEMENT OF AN ACTION1

14. The Court.

15. Jurisdiction of Courts.

16. Process—The Original Writ.

17. Service—Personal and Constructive.

18. The Appearance.

19. The Pleadings.

HAVING developed the view that Com­mon-Law Pleading still survives as the basis of Modern Remedial Law, and having traced the Development of the Forms of Action, both Ancient and Modern, we may now turn our attention to the system of Offensive Pleadings as developed by Common-Law Procedure.

In its broadest scope, Procedure has to do with Pleading, Practice and Evidence; the steps by which proceedings are conducted in
1. In general, on the Commencement of an Action at

Common Law, see:


Treatises: Stephen, A Treatise on the Principles of

Pleading in Civil Actions, c. I, Of the Proceedings

In an Action. From Its Commencement to Its Ter­mination, 40-42 (3rd Am. ed. by Tyler, washington,

D. C. 1892); Perry, Common Law Pleading: Its

History and Principles, C. VI, Of the Original Writ,

140 (Boston, 1897); Martin, Civil Procedure at Com.

mon Law, c. I, Introductory, Art. 1~, Appearance,

10—12 (St. Paul, 1005); Gould, A Treatise on the

Principles of Pleading, Pt. II, Procedure, c. I & II,

The Pleadings, 69 (Sixth Ed. by Will, Albany, 1909);

Shlpman, Handbook of Common Law Pleading, c. I,

Outline of Proceedings In an Action, § 3 Process— The Original Writ, 17—20 (3rd Ed. by Ballantine, St.

Paul, 1023).

Decision: West v. Ratledge, 15 itO. 31 (1835).

the several Courts. It deals with: (1) The Courts; (2) The Jurisdiction of the Courts— in which Court an Action must be brought, and the Authority of the Court over the sub­ject-matter; (3) The Process or Summons to acquire Jurisdiction of the Cause and to compel the Defendant’s Appearance; (4) The Pleadings, the formal Statements of Claim on one side and of Defense or Replies thereto on the other; (5) The Examination of the Issues of Law after argument upon Demurrer; (6) The Trial of Issues of Fact joined in the Pleadings; (7) The Judg­ment or Award of the Cause with re­spect to the nature and amount of relief to be given, the great object of which all prior proceedings have led up to; (8) The Final Process of Execution, which enforces the Award or Relief by intervention of ministe­rial or executive officers; and lastly (9) The Review on Motion for a New Trial, a Writ of Error, a Bill of Exceptions, or on a Mod­em Statutory Appeal, to correct errors which may have arisen. First, then, a word about the Courts, which administered the Common-Law.

68

Sec. 14


THE COURT

69

THE COURT

14. A Court is a tribunal duly constituted, and present at the time and place fixed by Law for Judicial Investigation and Determina­tion of Controversies. And there are Courts of General and Special Jurisdiction, Courts of Original and Appellate Jurisdiction and Courts of Record and Not of Record. The procedure under which these Courts operate may be gov­erned by Legislative Rules or Rules of Court, the modern tendency being in the direction of the latter method.
In General
WHEN a client consults a lawyer concern­ing some controversy in which he is involved, what he wishes to know is whether he has a civil action against his adversary. “A civil action at Common Law is a proceeding in a Court of Justice for the purpose of obtaining redress for the violation of a legal right.” ~ If, after an analysis of the Facts of the client’s case, the lawyer decides that he has a Cause of Action, then he must determine what Court has Jurisdiction over the supposed ac­tion. Therefore, before considering the Prob­lem of Jurisdiction, it may be well to inquire as to what is a Court? According to .Ander­son’s Law Dictionary the word “Court”

originally could signify only a yard or palace, and according to Cowel it meant the house where the King remained with his retinue; also the place where Justice was admin­istered.4 In early Anglo-Saxon and Anglo-Norman times it referred to the place of the King’s domicile as the King was the fountain-head and Dispenser of Justice. During this primitive period of development


S. Martin, Civil Procedure at Common Law, e. I, In­troductory, Art II, Civil Actions, 7, Defined (St Paul, 1905).
‘An Action Is nothing else but a lawful demand of right.” Borne, The Mlrrour of Justices, c. II, Of ActIons, 74 (With an Introduction by William 0. Robinson, Washington, I). 0., 1003). See, also, Co­hens ‘cc VIrginia, 19 U.S. (6 Wheat.) 264 at 407, 408 (1821).
2. DictIonary of Law (Chicago, 1889).

the Courts were popular assemblages held in the courtyard of the baron or of the King himself by those whose duty it was to ap­pear at stated times or upon Summons. With this idea in mind Blackstone defined a Court as “a place where Justice is Judicially Ad­ministered,” and at least one American Court accepted his definition.° But it has been regarded as too narrow, it being conclud­ed that a Court is a tribunal duly con­stituted and present at the time and place fixed by law for Judicial Investigation and Determination of Controversies.7 And it has sometimes been regarded as an incor­poreal thing requiring for its existence the’ presence of a Judge. It should, however, be understood that the Court does not consist of the Judge or Judges as individuals, but only when at the proper time and place they are exercising their Judicial powers.8 And there are different kinds of Courts, as, for example, when viewed from the standpoint of Jurisdiction,


Different Kinds of Courts
THUS, Courts may be either one or two descriptions—of General Jurisdiction or of Special Jurisdiction. As classified in this manner, it is observed that a Court with Gen­eral Jurisdiction is one which has all the pow­er which a Superior Court of the Common Law had, and it may hear a wide variety of cases. A Court of Special Jurisdiction is one whose Jurisdiction is limited by Constitution or Statute and hence may only hear and de­cide specific cases. When the Court is one of General Jurisdiction, its Jurisdiction is pre­sumed and need not be expressly asserted by the plaintiff; but when the Jurisdiction is

5. 3 CommentarIes on the Laws of England, c. III, Of


Courts in General, 23 (7th S. Oxford, 1775).
I. Ex Parte Branch & Co., 63 Ala. 383 (187P~.
7. 8 Am. & Eng.Eney. of Law, 22 (Northport, 1808).

4. Law Dictionary (CambrIdge, 1727).

S. In it Steele. 156 F. 853 (D.C.Ala.1907).

70

COMMENCEMENT OF AN ACTION

CE 3

limited, the plaintiff has the burden of estab­lishing the Court’s Jurisdiction.9



A Court may also be either of Original or of Appellate Jurisdiction. Original Jurisdic­tion consists of a Court’s authority to decide a case in the first instance; and Appellate Jurisdiction consists of the Court’s author­ity to review and correct the errors alleged to have been committed by a lower or Sub­ordinate Court. To put the matter another way, the Court of Original Jurisdiction is a Trial Court, readily accessible to the people in such locality where the witnesses are heard and a Judgment is rendered, whereas a Court of Appellate Jurisdiction acts upon the Record made in the lower Court; it is farther removed from the people and among its purposes is not only that of reviewing the errors of inferior Courts, but also that of bringing uniformity in the law throughout the territory over which it exercises Appel­late Jurisdiction.
Courts may also be either of record or not of record.’° The former includes Courts in which the proceedings therein are recorded on parchment for a perpetual memorial and testimony, the Records of which may be of­fered in other Courts as conclusive evidence of the facts stated, ~‘hereas the latter refers to a Court whose Records are not so regard­ed in other Courts, or at most are regarded only as prima fade evidence of the facts stat­ed therein. By Statute in some states the Statute of Limitations on a Judgment of Record is twenty years; on a Judgment of a Court not of Record six years.1
JURISDICTION OF COURTS

i5. Jurisdiction depends upon authority over the subject~matter and over the parties.

IN general, Jurisdiction is the power of a Court to hear cases and decide them by pro.

9. See Repp~’, Introduction to Civil Procedure, e. II, The Commencement of an Action, ~ 1, PrelimInary Matters, Note 2 (Buffalo, 1954).

1~. mid.

11. Ibid.

nouncing Judgment. And the power to ren­der Judgment depends: (1) upon Jurisdic­tion over the subject-matter of the action or of the class of cases; and (2) upon Jurisdic tion over the parties.’2
Derivation of Jurisdiction

THE Judicial Powers and the Jurisdiction of the Courts of the States and of the United States are in general derived from their re­spective Constitutions and are further de­fined and fixed by Statutes enacted thereun­der. Such Written Law prescribes the Na­ture of the Causes that may be brought with­in the cognizance of the respective Courts. In England, however, and by way of con­trast, the source of the power and authority of the Common Law Courts to afford the re­lief asked was anciently the Original Writ, a delegation from the King in each instance. Such a Writ was the warrant of authority under which a particular Common Law Court took cognizance of the cause,’3 In course of time the Jurisdiction of the Law Courts be­came fixed and established as to those mat­ters in which Writs were demandable of com­mon right. In time, however, Original Writs fell out of use as a regular means of Com­mencing an Action. Nonetheless they left behind them a dearly defined Jurisdiction and the limited system of remedies under the Forms of Action, each of which will be con­sidered in detail.


The Problem of Jurisdiction in Englond and America Distinguishe4

IN approaching the Problem of Jurisdic­tion of American Courts, the student is faced with complications not present under the English System. In England a precedent once established on a particular subject be­came the Law of the land, whereas in the United States, each State had an independ­


12. Courts. 7 R.C.L. 1030 (1915).
13. fllaekstone’s Commentaries on the Laws of Eng­land, )3ook 111, c. XIV, Of the Pursuit of Bemethes

by Action, 756 (chase’s Am. ed., ~ew York, 1877).

Sec. 16


PROCESS—TIlE ORIGINAL WRIT

71

ent Judiciary, except as limited by the Fed­eral Constitution or by Federal Statute.14 Superimposed above the states, whose Judi­ciaries were not only substantially independ­ent of the Federal Government, but were al­so independent of each other, was the Fed­eral System of Courts, consisting of a Su­preme Court, and “such inferior Courts as the Congress may from time to time ordain and establish,” iS While the Judicial Powers of the State Courts were general and unde­fined, limited only by those reserved to the Federal Courts,’6 the powers which could be exercised by the National Courts were con­fined within limits strictly defined by the Federal Constitution. Thus, under the Con­stitution, the Supreme Court had Original Jurisdiction only “in all cases affecting Am­bassadors, other public Ministers and Con­suls, and those in which a State shall be a Party.”” In all other cases, the Supreme Court had Appellate Jurisdiction over certain decisions of the State Supreme Courts, and the Inferior Federal Courts, “with such Ex­ceptions, and under such Regulations as Con­gress shall make.” 18


Duality of Jurisdiction

IN England, even after some elasticity was afforded by the flexible nature of the Action on the Case, a large Jurisdiction was still unprovided I or. To meet this lack of remedy, it is said that the Court of Chan­cery was created, in which the Chancellor


14. See Baldwin, The American Judiciary, 125, 174 (New York 1905).
15. U.S.Const., art. III, § 1.
16. The Laws enacted by the congress of the United States are Law in the Several States. Accordingly, the right of a State Court to protect rights granted by a Federal Statute cannot be questioned. Con­gress may, however, where a right Is created by a Federal Enactment, give the Federal courts Er-elusive Jurisdiction. See article by Reppy, Civil Remedies and Procedure, In 1942, Annual Surv.Am. L. 791, 512 (New York, 1942).
17. Art. III, § 2, ci. 2.

gave Equitable Relief and dispensed complete Justice where it was urged, for one reason or another, that there was no adequate remedy at Common Law. The Jurisdiction of Eq­uity was residuary and supplemental to the Law, based on a delegation by the Council of Judicial Authority not previously dele­gated to the older Courts. Such is the source of the great division of Jurisdiction into Le­gal and Equitable, allotting certain kinds of actions and relief to one set of Courts and the remainder to another. The line of de­markation between Legal and Equitable Ju­risdiction is thus historical in origin and ar­bitrary in fact. Nevertheless, the duality of Courts and Jurisdiction has to be kept con­stantly in mind, as it had a direct bearing upon how Jurisdiction in a given case was to be secured by the Common Law Courts and the Court of Chancery, and the powers which they exercised.


PROCESS—THE ORIGINAL WRIT’°
It Original ‘Process” is any Writ or no­tice by which a defendant is called upon to
19. In general, on the history and development of the Original Writ, see:
Treatises: Retorus Brevium (London, 1519); Matura Brevium (London, 1584); Itegistrum Crevium (Lon­don, 1595); 3loylo, An Exact Book of Entries of the Most Select Judicial Writs Used in the common Law (London, 16.58); Hughes, Comments Upon Orig­inal Writs (London, 1662); Brownlow, Brevia JutE­claim, or Collection of Approved Forms of All Sorts of Judicial Writs in the Common Bench (Lon­don, 1662); Townsend, Tables to Most of the Print­ed Precedents of Pleadings, Writs and Return of Writs, at the Common Law (London, 1667). Autro­bus & Impey, Brevia Selecta, or Choice Writs (Lon­don, 1675); Offleina Brevium, Select and Approved Forms of Judicial Writs and Other Process, with their Returns and Entries in the Court of Common Pleas (London, 1679); Jus Filizrii, or The Filacer’s Office in the Court of King’s Bench, Setting Forth the Practice by Original Writ (London, 1684); Theo­bald, Los Digest des Briefs Originals et des Choses Concernnrtts Eur (London, 1687); Cornwall, Tables of Precedents ot Pleadings, Writs, dcc., at the Com­mon Law: being a Continuation from Mr. Town­send’s Tables (London, 1705); Spottiswood, An In­troduction to the Knowledge of Stile of Writs, Sim­ple and Compound, Made Use of in Scotland (Edin­

18. Ibid.

72

COMMENCEMENT OF AN ACTION

Cli. 8

appear and answer the plaintiff’s Declaration. The Commencement of an Action at Common Law was formerly by Original Writ. Judicial Process was by Summons, Attachment, Arrest or Outlawry.
tn General
ACCORDING to Miller,20 in practically all
Systems of Procedure, the Parties to an Ac­tion are entitled to be heard or to have an opportunity to be heard, before the Judicial Machinery of a State becomes operative. In the United States, under both State and Fed­eral Constitutions, due process of law re­quires due notice and an opportunity to be heard.°1 It follows, therefore, that in order to Commence an Action, it is highly essen­tial that the defendant shall have due notice and an opportunity to present his version of the controversy. This was the primary func­tion of Judicial Process in its various forms.
Original Writ

AT Common Law, as previously observed, an action was begun by suing an Original Writ out of Chancery, in the King’s name, which served the purpose of ordering the Sheriff to give the defendant notice, deter­mined the character of the action, and au­burgh 1727); Bohure, The English Lawyer, Show­ing the Nature and Forms of Original Writs (Lon­don, 1732). Mallory, Modern Entries in English, being a Select Collection of Pleadings in the Courts of King’s Bench, Common Pleas and Exchequer, and also All Kinds of Writs, 2 Vols. (London, 1734— 5); Thesarius Brevium, or a Collection of Ap­proved Forms of Writs, and Entries to those Writs and Pleadings, &c. (London, 1787).
Articles: Maitland, ‘The Ristory of the Register of

Original Wi-its, 3 Harv.L.Rcv. 96, 167, 212 (1889);

Wilson, Writs v. Rights, IS Micb.L.Rev. 255 (1920);

Shattuck, Gratuitous Promises, A New Writ, 35

Mich.L.Rev. 008, 935—9 (1037); Wurzel, The Origin

and Development of Quo Minus, 49 Yale Li. 39

(1939); Schulz, Writ ‘Praecipe Quod Beddat” and•

Its Continental Models, 54 Jurid.Rev. 1 (1942).


to. The Formative Principles of Civil Procedure, 18 IIi.LRev, 1—36, 94—117, 150—168 (1928).
St Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565 (1877).

thorized a specific Court to hear the cause. Substituted in lieu of the Original Writ, the Modern Summons is also issued in the name of the Sovereign, and is directed against the defendant. Although the Summons does not have all of the attributes of the Original Writ, it does serve as an effective instrument for Commencing an Action. With these com­ments in mind, we may now consider the varieties of Judicial Process by which Juris­diction over the parties to an action may be acquired.


Commencement of an Action in Modern Practice

IN Modern Practice the Original Writ is no longer used either as authority for insti­tuting an action, or for the purpose of com­pelling appearance by the defendant,2 though in some of our states the term is re­tained to designate the process that has talc-en its place. No Writ at all is necessary for instituting actions, and the Writ of Sum­mons is used as a means of notifying the de­fendant of the suit and ordering him to ap­pear in Court. The practice is very general­ly, if not entirely, regulated by Statutes, varying somewhat from State to State.


The general practice is for the attorney, in Commencing an Action, to draw up, sign and present to the Clerk of the Court, an order requesting him to issue a Summons. This order is called a praccipe. It is not es­sential to the validity of the Summons, but is used merely as a convenient way of di­recting the Clerk as to its issuance. A ver­bal direction would do as well~
22. In this country since the Jurisdiction of the Courts is conferred by Constitution and Statutes, there is no need of any Original Writ to authorize the Institution of an actmon, President, etc., of Bank

of New Brunswick v. Arrowsmlth, 9 NJ.L. 284 (1527). Cf. Pressey v. Snow, 81 Me. 288, 17 A. 71 (1889).

23. Potter v. John Hutclfison Mfg. Co., 87 Mich. 59~
49 N.W. 517 (1891).

PROCESS—THE ORIGINAL WRIT



Summons and Arrest24

THE first Process upon the Original Writ
in tontract actions and for civil injuries un­accompanied by force was a Summons, or warning to appear according to the com­mand of the Writ itself, made out by the plaintiff’s attorney for the Sheriff, and de­livered by one of his deputies to the defend­ant. But by early Statutes a Capias was
24. In general, on the Service of Process in Actions at Law, see:
Articles: Amram, The Summons, 68 U.Pa.L.Rev. 50 (1919); Scott, Jurisdiction over Non-Residents, 20 flatv.L.Rev. 871 (1919); Burdick, Service in Ac­tions in Personam, 20 Mich.L.Rev. 422 (1925): War­ren, Federal Process and State Legislation, 10 Va. L.Rev. 421, 546 (1930); Keefe & Roscia, Immunity and Sentimentality, 32 Corn.L,Q. 471 (1947).

Comments: Arrest of Defendant of Mesne Process on a Civil Proceeding, 26 Col.L,Ilev. 1007 (1920) The Judicial Process—Ultramares Corp. v. Touche, 26 Ill.L.Rev. 49 (1931); Federal Practice: Attachment Without Personal Service of Summons, 31 Corn.LQ. 103 (1948); Service Of Process in Civil Actions in California, 37 Col.L.Rev. 8 (1949); The Require­ment of Seizure in the Exercise of Quasi-in-Rem Jurisdiction and Pennoyer V. Neff, 63 Harv.L.llev. 657 (1950); ImmunIty from Service of Process in Civil and Criminal Cases, 1951 Wash.U.L.Q. 427; Immunity of Non-Resident Participants in Judicial Proceedings from Service of Process—A Proposal for Renovation, 26 Ind.L.J. 459 (1951); Process-Im­munity from Service—Person Entering State to File an Action, 49 Mich.L.Rev. 907 (1951); Sub­stituted Service and Waiver of Federal Venue Un­der “Neirbo”, 26 Ind.L.J. 285 (1951).
Annotations: Immunity of Non-Resident Suitor or Witness from Service of Process as Affected by the

Nature or Subject Matter of the Action or Proceed­ing in Which the Process Issues, 19 ALE. 828 (1922); Immunity from Service of Process of Non­Resident Requested or Required to Remain in the

State Pending Investigation of Accident, 50 A.L.R.

51 (1929); Immunity of Non-Resident from Service of Process While in State for Purpose of Settling or Compromising Controversy, 93 A.L.R. 872 (1934); Process—Service—Usual Place of Abode, 127 A.L.R. 1267 (1940); Immunity of Non.Resident Litigant or Witness from Service of Process as Affected by Transactions or Activities Unrelated to Action, 162 A.L.11. 280 (1940); ImmunIty of Non-Resident De­fendant in Criminal Case from Service of Process, 20 A.L.R. (2d) 163 (1951); Immunity from Service of Process of Non-Resident Witness Appearing in Other Than Strictly Judicial Proceedings, 35 A.L.R. (2d) 1353 (1954).

allowed in all ordinary cases, and was gener­

ally issued in the first instance.25



A ttachrnat”

THE Writ of Attachment is a Writ corn-

manding the seizure of the property of the
25. Martin, Civil Procedure at Common Law, e. I, Introductory, Art. I, Primordial Conceptions, § 13, Changes in The Law, 11 (St. Paul, 1905).

Civil arrest by capias ad respondeadu,n in Actions of Debt was settled procedure at Commoo Law from the reign of Edward III [1327—1377J. TiUd, Practice of Court of King’s Bench in Personal Actions, e. VII, Of the Cnpias by Original and Process of Out­lawry, 122 (1st Am. ed., Philadelphia, 1807).

Wherever the defendant could be arrested he could be held to bail and could appear only by giving special bail as contrasted with common bail or nominal bail. The defendant could not plead in bailable ac­tions until he had appeared by giving baiL The Process by Attachment and Distringas or Distress Infinite was availed of wherever the defendant avoided arrest. Pidd, Practice of Courts of King’s Bench, e. V, Of the Original Writ and Process Thereon, Previous to the Capias, 107 (1st Am. ed., Philadelphia, 1807).
26. In general, on the subject of Attachment, see:
Treatises: Ashley, The Doctrine and Practice of At­tachment in the Mayor’s Court, London, &-c, (London, 1819); Cushing, A Practical Treatise on the Trus­tee Process or Foreign Attachment of Massachu­setts and Maine, &c. (Cambridge, 1833) Hiakley, Acts of the Assembly of Maryland, on the Subject of Attachment (Baltimore, 1830); Sergeant, A Treatise Upon the Law of Pennsylvania, Relative to the Proceedings by Foreign Attachment &c. (Phila­delphia, 1840); Locke, Law and Practice of Foreign Attachment in the Lord Mayor’s Court (Philadel­phia, 1854); Temple, Law and Practice of Attach­ment of Debts (London, 1855); Brandon, Treatise Upon the Customary Law of Foreign Attachment (London, 1861); Daniel, Law and Practice of At­tachment Under the Code of Virginia (Lynchburg, 1869); Cowen, Treatise on the Law and Practice Relating to Warrants and Attachments (Albany, 1864); Cababe, Interpleader and Attachment of Debts (London, 1881); Kneeland, Treatise on the Law of Attachments in Civil Cases (New York, 1884); Drake, Treatise on the Law of Suits by At­tachment in the United States (6th ed, Boston, 1855); Waples, Treatise on Attachment and Gar­nishment (Chicago, 1885); Wade, Treatise on the Law of Attachment and Garnishment, 2 Vols. (San Francisco, 1886),
Articles: Maupin, Right of a Creditor to Sue and At­tach(Before Expiration of the Credit, 44 Cent.L.J.

Sec. 16

73

COMMENCEMENT OF AN ACTION

defendant, to be held as security for the sat­isfaction of the plaintiff’s claim.


Such a Writ always issued before Judg­ment, and thus differs from an Execution, which is the Process issued after Judgment, In some States it can be issued only against absconding debtors or persons concealing themselves, or nonresidents; in others, it is issued, in the first instance, to obtain control over the property of the defendant with which to satisfy the Judgment.
At Common Law, the Attachment was used to compel the appearance of the defend­ant, and, when he has appeared, the Attach­ment was dissolved. There was no lien up­on the goods to secure the debt. The Writ is now issued to attach personal property and real estate to respond to the Judgment. The defendant may appear or not, after having been served with the Summons; if not, he is defaulted, and the Attachment constitutes a ilen on the goods for the payment of the claim sued on, which may be enforced by Execution. The defendant may, however, generally appear at any time before Judg­ment, and dissolve the Attachment by giving a bond, in which case the attached property is released, the bond standing in its place.2
380 (1897); Johnson, Attachment of Choses in Ac­tion in New York, 13 N.Y.U.L.Q.Rev. 37 (1930); Wolf & Michael, Property Interests Subject to At­tachment for Constructive Service in Ohio, 21 U. CinrnLdtev. 125 (1952).
Comments: Publication of Process In Attachment Pro­eeedings, 46 W.Va.L.Q. 223 (1940).
27. See 1 Scion, Practice, 137 (London, 1798); 3 Blackstone, Commentarjes on the Laws of England, e. 19, Of Process 290, 291 (2nd American ed. Boston, 1799).
On Special Bail as a condition of Appearance by non­resident whose goods have been seized, see Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 LEd. 837, 17 A.L.R. 873 (1920); Id., 30 Del. (7 Boyce) 297, 323, 105 A. 838, 849 (1919).
if the property attached is a chose In action, It brings In a new party in the person of one Indebted, who is called the “garnlsbee,’ and who Is required to hold the property in his hands until the Attachment or “Garnishment,” as It is called, Is dissolved or be is ‘otherwise discharged. As to this process, see Drake,

The giving of a bond is sometimes compelled by Arrest on Civil Process, which is another provisional remedy.28

As a general rule the Action is deemed to be Commenced when the Writ is issued, al­though to stop the running of the Statute of Limitations some Courts hold that the Writ must be delivered to the officer for service. But others hold that this is not necessary.29
Attachment, c. XX, You may be Garnished, Sec. 481, 428, (7th Ed. Boston, 1891).
28. In general, on the subject of Arrest on Civil process, see:
Treatises: Dawes, Commentaries on the Laws of Ar­rests in Civil Cases, in which they are Deduced from their Origin to the Present Form (London, 1787) Pamphlet. Macdonald, Thomas, A Treatise on Civil Imprisonment, In England, with the History of its Progress, and Objections to its Policy. (Lon­don, 1701); Pearce, A Treatise on the Abuse of the Laws, Particularly in Actions by Arrest (London, 1814); Crowther, The History of the Law of Ar­rest in Personal Actions, (London, 1828); Words­worth, W., Observations on the Law of Arrest, show­ing its impolicy, and how it may be and is abused. (London, 1832); Theobald, The Law for Abolishing Imprisonment for Debt on Mesne Process, &c. (Lon­don, 1838); Lush, 11., An Act for the Abolition of Arrest on Mesne Process, &e., 1 & 2 Vict. c, 10, with copious notes, explanatory of the Alterations in Law and Practice, and an Index. (London, 1838); Ings, E., The Act for the Abolition of Arrest on Iiicsno Process in Civil Actions, and also, the Acts 2 & 3 vict. c. 39, and 3 & 4 Viet. a. 82, relating to or amending the same, with the Rules, Orders, and Cases, as Decided in all the Courts, arranged ac­cording to their Applicability to the various Sec­tions, together with an Appendix of Forms, &c. (London, 1840); Smythe, The New Practice of the Law in Ireland, Under the 3 & 4 Viet., c. 105, be­ing the Act for the Abolition of Arrest on Mcsne Process, &e., with a Practical Comment (Dublin, 1842).
Articles: Bohlen and Shulman, Arrest With and With­out a Warrant, 75 U.Pa.L.Rev. 485, 492 (1927); Boh­len and Shulman, Effect of Subsequent Misconduct upon a Lawful Arrest, 28 Col.L.Rev. 841 (1028); Pearson, The Right to Kill In Making Arrests, 28 Mlch.L.Bev. 957 (1930); Perkins, The Law of Ar­rest, 25 Iowa L.Rev. 201 (1940).
29. SuIt Is commenced by the issue of Summons. Schroeder v. Merchants’ & Mechanics’ Ins. Co., 104 Ill. 71 (1882).
See Mason v, Cheney, 47 N.H. 24 (1860); County V. Pacific Coast Borax Co., 67 N.J.L. 48, 50 A. 906 (1902), amrmed 60 N.J.L. 273, 53 A. 386.

74

Ch. 3

See. 17


SERVICE—PERSONAL & CONSTRUCTIVE

75

SERVICE—PERSONAL AND



CONSTRUCTIVE
17. Jurisdiction to render a Personal Judg­ment is based on Personal Service of a Sum­mons, or sometimes on Substituted Service. Jurisdiction in Rem, and Quasi in Rem is based on Constructive Service by Publication and Control of some rca.
In General
PERSONAL Judgment must be based up­on Personal Service of Summons upon the defendant, or in case of residents upon Sub­stituted Service. Constructive Service of Process by Publication is by Statute author­ized where the Court has Jurisdiction in Rem or Quasi in Rem. For the latter case seizure of some property by Attachment or otherwise is necessary.3°
PERSONAL Judgments must be based up­on Defendant Personally

THERE is a most important distinction be­tween the Jurisdiction which is based on per­sonal service,3’ and Jurisdiction which is bas­ed upon control over some res or subject matter, which is under the power of the Court. Only by virtue of Personal Jurisdic­tion can the Court render a personal Judg­ment and create a personal obligation which will bind all the defendant’s property every­where.


The ordinary method by which a Court gets authority to adjudicate upon the rights and liabilities of the defendant is by Service of Summons upon him personally within the state. There are statutory provisions as to the officer or agent upon whom the Summons shall be served in actions against corpora­tions. The service, when personal, may be made at any time after the Writ comes into the hands of the officer, but not later than the time fixed by Statute, which may be the Return Day or a certain time before. The officer is bound to use due diligence in serving
3°. Pennoyer V. Neff, 05 U.s. 714, 24 LEd. 565 (1S77).
31. Supra, tote 24.

it, and is liable for neglect or a false Return. Having made the service, it is his duty to Return the Writ to the Court from which it issued, with his report of service, or that the defendant cannot be found 32 within his Jurisdiction indorsed thereon, which is called his “Return”.


The act of notifying him of the Commence­ment of the Action is generally performed by reading the Writ to him, or handing him a copy of it, or, as is now generally provided by Statute, by leaving a copy at his last usual place of abode, if he has one within the Jurisdiction of the Court.33
Substituted Service

SUBSTITUTED Service, by leaving a copy of the Summons at the defendant’s residence or usual place of abode, may by Statute be made equivalent to Personal Service as to a resident defendant, and it will support a Personal Judgment. “Substituted Service in actions in personam is a departure from the Common Law Rule requiring Personal Serv­ice, and the Statute authorizing such service must be followed strictly. But when the Stat­ute is complied with, the general rule is that Substituted Service on a resident defendant is equivalent to Personal Service and war­rants a Personal Judgment.” ~


32. In general on Personal Service, see: Article:

Burdick, Service in Actions in Personam, 20 Mich. L.Rev. 422, 425 (1925); and that Substituted Serv­ice of Process, by posting of Writ on the front door is due process, see, Substituted Service of Process by Posting on the Front Door—Due Process of Law, 7 Va.L.Rev. 070 (1021).


33. See England: Heath v. White, 2 Dowl.L. 40 (1841); Illinois: Bimeler y. Dawson, 5 Ill. (4 Scam.) 536, 39 Am.Dec. 430 (1843); Law v. Grommes, 158 Ill. 492, 41 N.E. 1080 (1%5); Vermont: Hophinson v. Sears, 14 Vt. 494, 39 Am.Dec. 236 (1842), in which there was a Service of a Summons by delivering a copy without reading the Writ to the defendant and in which it was held that such service was ia­sufficient.
34. 5e~ Loyd, Cases on Clvii Procedure, c. III Ac­tions, 288, ii. 93 (Indianapolis, 1910).
See, also Cassidy V. Leitch, 2 Abb.N.C. (N.Y.) 315 (1875); Missouri, K. & T. Trust Co. v. Norris, 61

76

COMMENCEMENT OF AN ACTION

Cli. 3

Courts have no general power to Summon non-residents ~ and persons resident in one state are not subject to the exercise of Per­sonal Jurisdiction over them by Courts in another.3° If they hold property there, how­ever, they are subject to have their property rights adjudicated by a Judgment in Rem. Mere temporary presence in the state is sufficient to subject the non-resident indi­vidual to its power if Personal Service of Summons is secured therein, even if the defendant is merely passing through on a train. But foreign corporations cannot be served, unless doing business in the state. When once obtained, Jurisdiction continues through all subsequent proceedings in the same litigation without further notice.


Constructive Service: Jurisdiction in Rem

IN certain exceptional cases a Court may acquire a limited Jurisdiction in Rem by no­tice sent to a non-resident outside the state or published within it, which is regarded as sufficient to give him a reasonable oppor­1~linri. 256, 63 NW. 634 (1895); Nelson v. Chicago,

II. & Q. B. Co., 225 Ill. 107, 80 N.E. 100, 8 LEA.,

N.S., 1186, 116 Am.St.Rep. 133 (1907); 32 Cyc. C.

461 (1900); McDonald v. Mabee, 243 U.S. 00, 37 5.

Ct. 343, 61 LEd. 608, L.B.A.1917F, 458 (1917).
Ta Iowa, the Supreme Court has held that Statutes authorizing Service of Notice on residents of the State while outside its territorial limits and the ren­dition of Personal Judgment on such service are unconstitutional. Itaher v. Rahor, 150 Iowa 51, 120 N.W. 494 (1912), annotated in Ann.Ons.1912D, 680, 35 L.1t.A.,N.S., 292. See, nlso, in this connection, McDonald v. Mabee, 243 U.S. 00, 37 S.Ct. 348, 61 L. Ed. 608 (1917), annotated in L,R.A.1917F, 458; and article by Eurdick, Service in Actions In rersonam, 20 Mich.L.ltev. 429, 430 (1922).
35. For an excellent discussion of the fundamental principles governing Jurisdiction over non-residents, see Scott, Jurisdiction Over Non-Residents, 32 Harv. L.Rev. 871 (1919).
36. ‘Process from Tribunals in One State cannot run Into Another State, and summon parties there dom­iciled to leave Its territory and respond to proceed­ings against them,” far from their homes and busi­ness. Pennoyer V. Neff, 95 U.S. 714, 716, 24 LEd. 565, 566 (1877); Plexner v. Farson, 248 U.S. 289, 39 S.Ct. 97, 63 LEd. 250 (1919); Scott, Jurisdiction Over Non-Residents, 32 Harv.L.Rev. 871, 875 (1919).

tunity to appear and defend. But a Court cannot acquire Jurisdiction to pronounce a Personal Judgment against one who has no residence within the state, except by actual service of notice upon him within the state, or by his voluntary appearance.


Jurisdiction in Rem is Jurisdiction in a cause acquired by virtue of control over the subject-matter. All proceedings are really directed against persons and their rights, even though, as in admiralty, a res or ship be impleaded as defendant. Some notification of the proceedings is therefore essential, either by publication in newspapers, or by posting up notices, or by mailing notices to the last known address, or by service of Summons outside of the state. A Court order must in general be obtained to make service of the Summons by Publication or other substituted method, upon a showing by affidavit that Personal Service within the state cannot be had.37
Constructive Service: Jurisdiction Quasi-in-Rem

THERE has been a wide extension of the Doctrine of Jurisdiction in Rem to cases where there is no direct claim to a tangible ret Thus, where a suit is brought upon an obligation against a non-resident debtor, the


37. The Process of the Court is said to ‘run” only within the Limits of its own Jurisdiction, and only by service within those limits is Jurisdiction to pro­nounce Personal Judgment against a defendant without his voluntary appearnce acquired. Pen­foyer v. Neff, 9o U.S. 714, 24 LEd. 565 (1877); Col­dcy v, Morning News of New Haven, 156 U.S. 518, 15 S.Ct. 559, 39 LEd. 517 (1895); International Har­vester Co. v. Commonwealth of Kentucky, 234 U_S. 579, 34 S.Ct. 944, 58 L.Ed. 1479 (1914).
According to some authorities, no Personal Judgments can be rendered, even against a resident, merely on the basis of an Attachment of the property and Publication of Summons. De Arman v. Massey, 151 Ala. 639, 44 So. 688 (1907).
On the aequisition of In Pe,’8onam Jurisdiction by Service of Summons without the state upon a dom­iciliary of the state, see Milliken v. Meyer, 311 U.S. 457, 81 S.Ct. 339, 85 LEd. 278 (1940), rehearing de­nied 312 U.S. 712, 61 S.Ct. 548, 85 I~Ed. 1143.

Sec. 17

SERVICE—PERSONAL & CONSTRUCTiVE

77

Court may subject the property of the debtor within the state to the payment of the debt, even though no Personal Jurisdiction over him can be acquired. No claim is made to the property as such, the plaintiff is not seeking to cut off the defendant’s right, title or interest in the property as against the whole world; he does have an interest in the property, but it Is purely incidental to the satisfaction of his claim for the redress of a wrong, any surplus remaining there­after going to the defendant, and not to the plaintiff. It is held that where a claim is made to property indirectly to thus satisfy an obligation of a non-resident debtor, an Attachment or Garnishment or Receivership is necessary. Since the action is not so framed as to set up any direct claim to the res in the sense of seeking to cut off the defendant’s interest as against the whole world, a claim to specific property, as an incidental method of obtaining redress for a wrong, must be asserted in some manner, since Jurisdiction is based upon that. And the defendant must have notice of that claim in order to satisfy the requirements of due process of law. And the method of giving such notice is by seizure of the property by the Court prior to service by publication.38 Such seizure will give the Court Jurisdiction Quasi in Rem. A Judgment based on such Jurisdiction is not in personarn, and in this regard it is to be observed that the only ef­fect of the Judgment is to enable the plaintiff to satisfy his claim out of the attached prop­erty; any part of the property after the payment of the plaintiff’s demand remains the property of the defendant, although the


38. The leading ease on the necessity àf seizure by the court in order to properly ground Service by Publication In suits Quasi in Rem, is Pennoyer V. Neff, 95 U.S. 714,24 LEd. 565 (1877).
See, also, the following cases: Baillie v. Columbia Gold Mm. co., 86 Or. 1, 22, 42, 168 P. 965, rehearing denied 86 Or. 1, 161 F. 1167 (1917).
See, Hohfeld, rundaaiiental Legal Conceptions, 26 Yale L.J. 710, 781 (1917); Shipley v, Shipley, 187 Iowa 1293, 175 NW. 51 (1919).

character of said property may have been changed, as when real estate is sold on Ex­ecution for more than the amount of the demand, in which case the defendant re­ceives the balance as personal property.


The Operation of the Doctrine of Quasi in Rem Jurisdiction is best illustrated by the case of Pennoyer v. Neff ~ in which appeared that A, in the state of Oregon, was sued in Debt for service rendered by an attorney; that at the time the action began and the Judgment was rendered, A, the then defendant, was a non-resident of the state; that he was not personally served with Pro­cess, and did not appear therein; and that the Judgment was entered upon his default in not answering the complaint, upon a Con­structive Service of Summons by Publica­tion. Such service when an action is brought against a non-resident and absent defendant, who has property within the state, was pro­vided for by the Code of Oregon. The Code also provided, where the action was for the recovery of money or damages, for the Attachment of the property of the non-resi­dent. It also declared that no natural person was subject to the Jurisdiction of a Court of the State “unless he appear in the Court, or be found within the State, or be a resident thereof, or have property therein; and, in the last case, only to the extent of such prop­erty at the time the Jurisdiction attached.”
The plaintiff, B, in the original action having secured a Default Judgment for less than $300 including costs, sued out an Exe­cution on the Judgment, and C acquired the premises in question under a Sheriff’s deed, made upon a sale of the property on Execu­tion issued upon the Judgment. Thereafter, A, the defendant in the original action, sued

o in Ejectment to recover the land, of the alleged value of $15,000, situated in the State of Oregon. The issue thus presented was whether the Judgment in the State Court
38. 95 U.S. 714, 24 LEd. 565 (1877).
a. Id. at 719, 568,

78

COMMENCEMENT OF AN ACTION



against A, the then defendant, but in this action, the plaintiff, was void for want of Personal Service of Process upon him, or of his appearance in the action in which it was rendered, and whether the premises in con­troversy could be subjected to the payment of the demand of a resident creditor, The Court discussed the requirement of due proc­ess of law under the United States Constitu­tion when applied to a judicial proceeding, and in particular as related to the question of a Court obtaining jurisdiction over a de­fendant. Mr. Justice Field, speaking for the United States Supreme Court, held that the Judgment in favor of the plaintiff in the Circuit Court should be affirmed, because the only question was as to the validity of the original money Judgment rendered in Oregon, in an Action of Debt on a Simple Contract, against the resident of another state, without his voluntary appearance, or personal service of process upon him, by At­tachment of the property subsequent to the commencement of the Action. Prior At­tachment was and is necessary in order to give notice to the defendant that his property was involved in litigation. Without such notice the defendant’s property might be taken without a hearing or an opportunity to be heard, which would be violative of the due process clause of the Fourteenth Amend­ment. Finally, it is interesting to observe that in the principal case, even the Supreme Court failed to distinguish clearly between Jurisdiction in Rem as opposed to Jurisdic­tion Quasi in Rem.4
TIlE APPEARANCE’2

18. The appearance of the defendant is any act or proceeding by which he places himself


41. For a revaluation of the doctrine of the Pennoyer ease, see Note: The Requirement of Seizure in thc ~xercise of Quasi in Rem Jurisdiction: Fennoyer v. Neff Re-Examined, 63 Rarv.L.Rcv. 657 (1950).

42. In general, on the ~ubjoet of Appearance see:


Article: Blair, Constructive General Appearances and Due Process, 28 Ill.L.Rev. 119 (1928).
Comments: Pleading: What Constitutes an Appear­ance In New York, 3 Corn.L.Q. 148 (1918); PractIce

Ch. 3
before the Court in order to participate in the

action.

An appearance may be either

(I) General, or

(II) Special


IN discussing the subject of Appearance, it is important to distinguish between the plain­tiff and defendant. In beginning the action by either an Original or Judicial Writ re­turnable to a Specific Court, the plaintiff automatically submitted himself to its Juris­diction. He was, therefore, not required to appear for any purpose prior to the appear­ance of the defendant,” If he failed to file his Declaration and prosecute his action upon the defendant’s appearance, he was subject to a Nonsuit upon the defendant’s Motion after a demand in writing that the plaintiff should plead. Such a Nonsuit carried costs enforceable against him and his pledges. Un­der the Hilary Rules of 1834 M and under the Common Law Procedure Act of 1852’~ the plaintiff was regarded as out of Court

and P,0c7cL,rc—Speeial Appearance—Waiver of Ob­jections to Service of Process, 31 Mich.L.Rev. 862 (1933); Pieading-Motion to vacate Service of Proc­ess a General Appearance, 20 Va.L.Rev. 475 (1934); Judgmcnt.~—Default Judgments Rendered Without Jurisdiction—Validating Effect of a Subsequent General Appearance, 36 Mich.L.Rev. 455 (1938); Federal Courts—Rules of Civil Procedure—Motion for Bill of Particulars Filed Contemporaneously with Motion to Dismiss for Want of Service Held to Waive Objection to Jurisdiction Over the Per. son, 53 Harv.L.Rev. 493 (1940); Practice and Pro­cedure-Appeals from Refusals of Motions to Dis­miss—Special Appearance, 18 N.C.L.Ilev. 354 (1940); Procedure—General and Special Appearance—Waiv­er of Objection to Jurisdiction Under the Federal Rules of Civil Procedure, 40 Col.L.Rev. 153 (1940); Special Appearance In New York, 34 Corn.L.Q. 230 (1048); Special Appearance to Contest the Merits in Attachment Suits, 95 U.Pa.L,Rev. 403 (1049).


Annotation: Effect of Time of Execution of Written Appearance or Waiver of Service, 159 ALE. 111 (1945).
43. Martin, Civil Procedure at Common Law, c. I, In­troductory, 11 (St. Paul, 11)05),
44. Promulgated pursuant to 3 & 4 Will. IV, C. 42 (1833).

45. 15 & 18 Wet. e. 76, 58 (1852).

Sec. 18


THE APPEARANCE

79

upon failure to appear and plead within one year after the Return of the Writ.


The Doctrine of Appearance properly re­lates to the defendant, as his actual presence in person or through his attorney was a condition precedent to any Form of Pleading, to any Trial, or to any Judgment in the case. An Appearance is any unequivocal act by which a defendant submits to the Jurisdic­tion of the Court in a Cause of Action.” This is, in effect, a definition of a General Appearance. A Special Appearance is one made for the purpose of objecting to the Court’s Jurisdiction over the subject matter of the action or over the person of the de­fendant. If the Court has not previously acquired Jurisdiction of the defendant, such an appearance enables the defendant to ob­ject to the control, without submitting him­self to its jurisdiction.47
Under Modern Law a Court can acquire Jurisdiction to render a Judgment in person-ant eithcr by a General Appearance on the part of the defendant or by the Personal Ser­vice of a Summons. If, however, the defend­ant or his attorney does any act with ref er­ence to the Defense of the action, he will be held to have submitted himself to the author­ity of the Court, or to have made a General Appearance, the effect of which is to cure all prior defects in the service.48 Since Juris­diction over subject matter is defined by Constitution or Statute in America, consent of the parties cannot confer such Jurisdiction upon the Court, and therefore an Appearance
It Ridgway v. homer, 55 NiL. 84, 85, 25 A. 386, 387 (1892).
It Supra, note 42.
IS. California: Hayes v. Shattuck, 21 Cal. 51 (1862);

Indiana: Scott v. Hull, 14 lad. 136 (1860); Iowa:

Stockdale v. Buckingham, 11 Iowa 45 (1860); Min­nesota: Spencer v. Court of Honor, 120 Minn. 422, 139 N.W. 815 (1013) (Special Appearance); Federal:

York V. Texas, 137 U.s. 15, 11 S.Ct. 9, 34 LEd, 604 (1890) (No Special Appearance In Texas); Western Loan & Say. Co. v. Hutte & B. Consol. Mm. Co., 210 13.5. 368, 28 S.Ct. 720, 52 L.Ed. 1101 (1908) (Demur­t~er Is Appearance).

by the defendant constitutes no waiver of the objection that the Court has no Jurisdic­tion over the subject matter.’° A defendant may, however, waive Jurisdiction over his person, which he in effect does when he makes a Voluntary or General Appearance.
The English Courts did not, until modern times, claim Jurisdiction over the person of the defendant merely by service of Sum­mons upon him. If he failed to appear in response to the Summons, it was deemed necessary to resort to further Process by Attachment of his Property and Arrest of his Person to compel an “appearance”, which was not mere presence in the Court, but which consisted of some act by which a person submitted himself to the authority and Jurisdiction of the Court. If he still failed to appear, no Judgment could be ren­dered against him, except in Real Actions where the defendant was proceeding against the Jand within the Jurisdiction. Any steps in the action, such as giving bail 50 upon arrest, operated as an appearance or sub­mission.
Under later English law, by Statute, the plaintiff was authorized upon affidavit of Personal Service of a Summons or a Writ of Distringas, to enter the appearance of the defendant, and proceed to Judgment, if he failed to appear within a certain prescribed time. The effect of this practice was to
49. “Consent of the parties cannot confer jurisdiction upon a court in winch the law has not vested it.” Wetzel v. hancock County, 143 Ill.App. 178, 181 (1008).
50. In general, on the subject of Bail in an Action at Gommon Law, see:
Treatises: Coke, Law Tracts: III, A Treatise of flail and Mainprise, &c. (London, 1764); flighrnorc, A Digest of the Doctrine of Bail, in Cvii and Crim­inal Cases, &c. (London, 1783); Shroder, A Treatise oe the Law of Bail in an Action at Common Law (London, 1824); Petersdorf, A Practical Treatise on the Law 0f Bail in Civil and Criminal Actions (Phil­adelphia, 1835); Beeley, The Bail System in Chica­go (Chicago, 1921); De Haas, Antiquities of Bail, Origin and Historical Development ia Criminal Cas­es to the year 1275 (New York, 1940).

80

COMMENCEMENT OF AN ACflON

Ch. 3

eliminate the Process of Attachment and Arrest as a means of compelling the defend­ant’s appearance, except where Personal Service was unobtainable, in which instance the Ancient Mesne Process to Outlawry re­mained operative.51 But the Common Law Procedure Act of 1852 52 abolished the Writ of Distringas, together with the practice of plaintiff entering the appearance of the de­fendant.


Under Modern Law there is no effort to compel the appearance of the defendant. But if he be properly served and then neg­lects to Appear and Plead, the Court will render Judgment against him for Default of Appearance. Inasmuch as the Default con­stitutes an admission of the Cause of Action set forth in the Declaration, assuming of course that the plaintiff has stated a Cause of Action, all that the plaintiff would have to prove is his damages.
TIlE PLEADINGS
19. On the Appearance of the Parties, the Pleadings Commence. The Various Pleadings and their order are as follows:

(I) The Declaration of the plaintiff.

The Dilatory Pleas of the defendant.

The Demurrer or Plea of the defend­ant.

(IV) The Demurrer or Replication of the plaintiff.

(V) The Demurrer or Rejoinder of the de­fendant.



(VI) The Demurrer or Surrejoinder of the plaintiff.
(VII) The Demurrer or Rebutter of the de­fendant.
(VIII) The Demurrer or Surrebutter of the plaintiff.
51. Martin, Civil Procedure at Common Law c. 1, In­trodnctory, Art. IV, Appearance, ~ 13, Change In the Law, 11 (St. Paul, 190~).

Mode of Pleading
STEPHEN thus describes how the Plead­ings were once orally delivered: ~ “As the appearance was an actual one, so the Plead~ ing was an Oral Altercation in Open Court, in presence of the Judges. . . . These Oral Pleadings were delivered either by the Party himself or his Pleader, called ‘nar­rator’ and ‘advocatus’ ; and it seems that the Rule was then already established that none but a regular advocate (or, according to the more modern term, ‘barrister’) could be a Pleader in a cause not his own.
“It was the office of the Judges to super­intend, or, according to the allusion of a learned writer, moderate the oral conten­tion thus conducted before them. In doing this, their general aim was to compel the Pleaders so to manage their Alternate Allegations as at length to arrive at some specific point or matter affirmed on the one side and denied on the other. When this matter was attained, if it proved to be a Point of Law, it fell, of course, to the deci­sion of the Judges themselves, to whom alone the adjudication of all legal questions be­longed; but, if a Point of Fact, the parties then, by mutual agreement, referred it to one of the various Methods of Trial then practiced, or to such Trial as the Court should think proper. This result being at­tained, the parties were said to be at issue (ad exitum; that is, at the end of their pleading). The question, so set apart for decision was itself called ‘the issue’, and was designated, according to its nature, either as an ‘issue in fact’ or an ‘issue in law’. The whole proceeding then closed, in case of an Issue in Fact, by an award or order of the Court, directing the institution, at a given time, of the Mode of Trial fixed upon;
55. Stephen, A Treatise on the Principles of Pleading In Civil Actions, c. I, Of The Proceedings In An Ac­tion, from Its Commencement To Its Termination, 50, 60 (3rd ed. by Tyler, washIngton, D. C. 1803).

(II)
(III)



52. Common Law Procedure Act, 15 & 16 VIct C. 76,

fl 24, 26 (1852).

Sec. 19

THE PLEADINGS

81

or, in case of an Issue in Law, by an ad­journment of the parties to a given day, when the Judges should be prepared to pro­nounce their decision.”


The practice of oral pleading has long since ceased. The Modern Practice is to draw up Written Pleadings in typewritten form, and file them in the office of the proper officer of the Court, usually the Clerk’s office. Here the opposite party may examine a pleading, or he may procure a copy from the officer;

or it may be that under the statutes of the particular state, or a Rule of the Court, a copy may be required to be delivered to him. When the Pleadings are thus filed they be­come a part of the Record of the cause. They are not, as formerly, transcribed, but are themselves properly indorsed and kept on file as part of the Record.

The first of the various pleadings enu­merated above is the Declaration, the gen­eral aspects of which will now be considered.

Sec.


CHAPTER 4
THE DECLARATION—FORM AND GENERAL

REQUISITES’

20. Formal Parts of the Declaration.

21. The Actual Statement of the Cause of Action.

22. Ultimate and Evidentiary Facts.

28. Ultimate Facts and Conclusions of Law.

24. Several Counts in the Same Declaration.

25. Joinder of Different Causes of Action.

26. Different Versions of the Same Cause of Action.

27. Conformance to Process.

The Commencement

(V) The Conclusion

In General

FORMAL PARTS OF THE DECLARATION
20. The first pleading in an Action is the plaintiff’s Declaration, which is a statement in

legal and methodical form, of all the material facts constituting the plaintiff’s cause of ac­tion. It consists of the following parts:
(I) Caption or Title of Court

(II) The Venue

(III)

(IV) The Body, or Statement of the Cause



of Action

THE parties having been brought into Court as a result of the service of some Form of Process, the next step is to show, by Pleadings duly recorded, the nature of their dispute, and the first step in this direction in Personal Actions is for the plaintiff to file his Declaration, which is a statement in Legal Form of the plaintiff’s Cause of Action. In the Ancient Real Actions the first Plead­ing was a Count The Declaration was, ac­cording to Coke, but an amplification of the General Charge contained in the Original Writ, setting forth in greater detail the cir­cumstances involved in the plaintiff’s Cause of Action. According to the custom and practice of the Court in which it was filed, and depending upon the Form of the Action in each Case, the substantive requisites of the Declaration differed. But all Declara­tions were alike in that they contained five formal parts, to wit, the Title of the Court, the Venue, the Commencement, the Body, or Statement of the Cause of Action, and the Conclusion, the character and relative posi­



1. In general, for Forms of Declaration in the vari­ous common-Law Actions, see: Tidd, Practice of the Court of King’s Bench (1st Am. ed., Philadelphia 1807); Warren, A Popular and Practical Introthje­tion to Law Studies (3d ed., New York 1837); 1 Chitty, Pleading and Parties to Actions, with Prece­dents (16th Am. ed. by Perkins, Springfield 1885):

Martin, Civil Procedure at Common Law, Forms of Pleadiag, 366—392 (St. Paul 1005); Gregory, Forms of Common Law Declarations for Use in State and Federal Courts (Albany 1906); Whittier and l’rior­gall, Cases on Common-Law Pleading (St. Paul 1916); Shipman, Common-Law Pleading (3d ed. by Ballantine, St Paul 1923); Cook and Hinton, Cases on Pleadings at Common Law (Chicago 1923); Rep­py, Cases on Pleading at Common Law (New York, 1928) Beppy, Introduction to Civil Procedure (Buf­falo~ 1954).

82

Sec. 20 FORMAL PARTS OF DECLARATION


tion of which will appear from a typical BODY:

Form of Declaration set out below:

FORM OF DECLARATION IN TRESPASS ON

THE CASE nc ASSUMPSIT2


CAPTION OR

TITLE:

Court: IN TflE CIRCUIT COURT OF

COOK COUNTY

Term: To the October Terra, A.D. 1926

VENUE: COUNTYOFCOOK. 1

STATE 0!’ ILLINOIS, ~

BODY:

Arthur Brown, plaintiff, by Wil­liam Jbhnson, his Attorney, com­plains of Clarence Dowell, defendant, who has been summoned to answer the said plaintiff in a plea of tres­pass on the case in assuiupsit.



Inducement: For that whereas, on the 16th day of January, S.D. ~926, at Chicago, In the county aforesaid, the said plaintiff, at the request of the de­fendant, bargained with the said de­fendant to buy of him, and the said defendant then and there sold to the said plaintiff, a large quantity of corn, to wit, one thousand bushels at the price of sixty cents for each bushel thereof, to be delivered by the said defendant to the said plain­tiff in the week then next following at the said plaintiff’s elevator in said city, and to be paid for by the said plaintiff to the said defendant on the delivery thereof as aforesaid.

And in consideration thereof and that the said plaintiff had promised the said defendant, at his request, to accept and receive the said corn, arid to pay him for the same at the price aforesaid, be, the said defendant, on the day first aforesaid, in the county aforesaid, promised the said plaintiff to deliver the said corn to him as aforesaid.

2. 1 Shinn, Pleading and Practice in the Courts of Record of Illinois at Common Law In Civil Causes, with Forms, c. Ifl, 442 (ChIcago 1896). See, also, Legg, A. Suit at Law in Illinois, e. 28, 459, 463 (Chi­cago, 3916).

For a short succinct statement on the Formal Parts of a Declaration, see the case of Smith sc Fowle & Dunham, 12 Wend. (N.Y.) 9 (1834).

A’verment of Readiness

to Per-


And although the said time for the delivery of the said corn has long since elapsed, and the said plaintiff has always been ready and willing to accept and receive the said corn, and to pay for the same, at the price aforesaid, and has offered so to do.
Yet the said defendant did not, nor would, within the time aforesaid or afterwards, deliver the said corn, or any part thereof to the said plain­tiff at his elevator, as aforesaid, or elsewhere, but refuses so to do;
Whereby the said plaintiff has been deprived of divers gains and profits which would otherwise have accrued to him from the delivery of the said corn to him as aforesaid;

To the damage of the said plaintiff of five hundred dollars, and therefore he brings his suit

WrLLIAM JomqsoN
Attorney for Plaintiff

BAtr.flrmE’s, Shlpman on Common Law Pleading. c. 10, 76, p. 193 (St Paul, 3d ed. 1923).


With the Form of a Specific Declaration in Assumpsit before us, the Declaration may now be examined, first, With reference to its formal parts and general compositional and physical structure, and secondly, with refer­ence to the usual factors and rules which govern the statement of a cause of action in any form; the problem of stating a cause of action in terms of each of the eleven specific Common Law Actions will follow in later chapters.
The Caption or Title of the Court and Term

WITH respect to the Title of the Court, it consists, in general, of a superscription of the Name of the Court, thus, “In the Cir­cuit Court of County.” With respect to the Entitlement of Term, it is either Gen­era], thus, “October Term, 1955,” or Special, that is where a particular day of the term is stated. Such Title refers to the time when

83

COMMENCE­

MENT:

form:

Breach:

Damage:


CONCLU­

SION:

Considera­tion or

Promise:

84

DECLARATION—FORM



Ch. 4

the party is supposed to deliver his Oral Al­legation in Open Court; and as it was only in Term Time that the Court anciently sat to hear the pleading, it is therefore always of a Term that the pleadings are entitled, though they are often in fact filed or deliv­ered in Vacation Time. The Term of which any pleading is entitled is usually that in which it is actually filed or delivered, or when this takes place in vacation, the Title is of the Term last preceding.


The most frequent practice is to Entitle Generally. But it is to be observed that a pleading so entitled is by construction of the law presumed, unless proof be given to the contrary, to have been pleaded on the first day of the Term. And the effect of this is that, if a General Title is used, it will some­time occasion an apparent objection. Thus, in the case of a Declaration so Entitled, it may appear in the Declaration or in evidence on the Trial that the Cause of Action arose after the first day of the Term of which the Declaration is Entitled; and in either case this objection would arise: that the plaintiff would appear to have declared before his cause of action accrued, whereas the Cause of Action ought of course always to exist at the time the action is commenced.3 The means of avoiding this difficulty is to Entitle Specially of the particular day in the Term when the pleading was actually filed or de­livered.
The Venue4

THE laying of Venue was inextricably con­nected with the various stages of the devel­


3. See English: Pugh v. Robinson, 1 T.R. 116, 99 Eug. Rep. 1004 (1786); New York: Paul v. Graves, 5 Wend. (N.Y.) 16 (1830).
4. In general, on the subject of Venue in Common Law and Modern Actions, see:
Treatises: flayer, Preliminary Treatise on Evidence at the Common Law, c, II, Trial by Jury and Its Devi1opment, 65, 90—93 (Boston 1898); Scott, Fun­damental Principles of Procedure In Actions at

opment of the Jury. In the first stage the Jury was not a Jury, but in reality a group of witnesses who came into Court, and on the basis of their own knowledge of the facts of the specific case, told the Judge what hap­pened. In order, therefore, that the juror or jurors with knowledge of the facts might be selected, it was necessary for the sheriff to know where they could be located. The rule at Common Law, therefore, was that every material and traversable allegation of fact in the Body of the Declaration, if affirmative in form, should be laid with a Venue. Be­sides this Venue, which, by the ancient prac­tice, included the parish, town or hamlet, as well as the county, there was another laid on the margin of the Declaration, at its Com­mencement, stating merely the name of the county.


In the second stage of the development the Jury went partly on its own knowledge, and partly on knowledge gained from evidence presented in the Court. In consequence, the reasons upon which the original rule was founded gradually ceased to have any mean­ing. And as a result of the two statutes of 16 and 17 Car. U, c. 8 (1664) and of 4 Anne, c. 16,
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