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PART TWO OFFENSIVE PLEADING—GENERAL
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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
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).
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.
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
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.
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
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
Cli. 8
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~
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
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).
Sec. 16 73
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
See. 17
SERVICE—PERSONAL & CONSTRUCTIVE 75
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).
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
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.
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)
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.
(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
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
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
Breach:
Damage:
Consideration or Promise: 84
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, Directory: lawschool lawschool -> Handong International Law School Admissions Essays I. Instructions lawschool -> Law School Materials for Success Barbara Glesner Fines Download 9.19 Mb. Share with your friends:
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