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Common Law Pleading Modified Versus The Federal Rules: Ii. Amendments, Marlyn E. Lugar

West Virginia Law Review

No abstract provided.

A Decade Of Pleading, Practice, And Procedure, Leo Carlin

West Virginia Law Review

No abstract provided.

Practice And Procedure, Wiley H. Davis

Mercer Law Review

It has long been recognized that a large percentage of the cases decided by the appellate courts of Georgia are decided in whole or in part upon procedural points. Because of this fact, any attempt to survey the matters decided on such points during any twelve-month period must include reference to many cases, however brief the treatment. In making such a survey, one frequently faces the problem of deciding whether a holding is based primarily upon procedure or whether the case should be considered substantive in nature. Of course, some procedure is involved in the hearing, trial or appeal of …

Federal Courts-Substitution Of Parties By Amendment Under The Federal Rules To Correct A Jurisdictional Defect, Rex Eames S.Ed.

Michigan Law Review

The plaintiffs, local officers of a union, sued to enjoin the national officers of the union from interfering with plaintiffs' union duties. Because the original complaint failed to show diversity of citizenship as a basis for federal jurisdiction, plaintiffs sought by amendment to substitute five nonresident members of the union as parties plaintiff and to change the action to a class suit. Held, the court had the power to permit such an amendment but, in the exercise of its discretion, it would not do so here. National Maritime Union of America v. Curran, (D.C. N.Y. 1949) 87 F. …

Federal Courts-Use Of A Cross-Claim Under Rule 13(G) Of The Federal Rules Of Civil Procedure, Rex Eames S.Ed.

Michigan Law Review

Under an ordinary automobile insurance policy, P insurance company promised to defend and indemnify Harvey for any suit arising from an accident involving his use of the insured truck. Collier sued Harvey in a state court alleging injuries due to the negligent use of the insured truck by two Harvey employees. Before judgment thereon, P, incorporated under the laws of Wisconsin, sued Harvey and Collier, citizens of Oklahoma, in the federal court. P sought a declaratory judgment on the grounds that (a) at the time of the accident the employees were under the control and supervision of the City …

Procedure-Effect Of Fraud In Tolling Of Statute Of Limitations Of "Substantive" Nature [Scarborough V. Atlantic Coast Line R. Co., C. A. 4 Th 1949]

Washington and Lee Law Review

No abstract provided.

Forensic Persuasion, Arthur T. Vanderbilt

Washington and Lee Law Review

No abstract provided.

Federal Procedure-Disposition Of Case Before Court On Certiorari After Petitioner Has Fled Jurisdiction [Eisler V. United States, U. S. Sup. Ct. 1949].

Washington and Lee Law Review

No abstract provided.

Procedure-Conclusiveness Of Lower Court's Judgment After Dismissal Of Appeal On Basis Of Mootness [United States V. Munsingwear, Inc., C. A. 8th 1949].

Washington and Lee Law Review

No abstract provided.

Common Law Pleading Modified Versus The Federal Rules, Marlyn E. Lugar

West Virginia Law Review

No abstract provided.

Erie To York To Ragan -- A Triple Play On The Federal Rules, Edward L. Merrigan

Vanderbilt Law Review

Approximately twelve years have passed since the Supreme Court of the United States promulgated the Federal Rules of Civil Procedure almost simultaneously with its decision in Erie R. R. v. Tompkins.' These two events revolutionized almost every phase of practice in the federal courts. The Rules substituted uniformity for state conformity in federal procedure, while the Erie decision required an adherence to state conformity in matters of substantive law.

As a result of this concurrent, diverse treatment of substantive and adjective law, it was assumed that the Court intended, in future diversity of citizenship cases, to recognize the dichotomy of …

Judgments-Setting Aside-Failure Of "Local Agent" To Notify Corporation Of Service Of Summons, Lloyd J. Tyler, Jr.

Michigan Law Review

Service of summons was made upon a ticket agent employed by a lessee of the defendant coach line in accordance with a North Carolina statute which provides that any person receiving or collecting money within the state for a corporation is a ''local agent" for the purpose of service of process. This agent did not notify the defendant corporation of the summons, and a default judgment was entered. On appeal it was held that the judgment should not be set aside for want of service of summons, since the ticket agent was within the statutory definition of ''local agent." The …

Judgments-Collateral Estoppel By A Lower Court Judgment When Appeal Therefrom Is Dismissed Because The Case Has Become Moot, John C. Walker S.Ed.

Michigan Law Review

The United States sued defendant in two counts for violation of OPA price regulations. The first count asked for an injunction to restrain further violations while the second sought treble damages for past violations. By agreement of the parties the injunction issue was tried first. The trial court found that there had been no violation of price regulations and dismissed the bill. This phase of the case was appealed by the government as a final order. The appeal was dismissed on the ground that the injunction issue had become moot, the particular commodity having been decontrolled in the interim. The …

Judgments - Double Jeopardy - Res Judicata - Effect Of Prior Conviction Or Acquittal On Subsequent Suit For Statutory Penalty Or Forfeiture, Edward W. Rothe S.Ed.

Michigan Law Review

The case of United States v. One De Soto Sedan has again focused attention on some of the perplexing problems raised by the statutory imposition of both criminal and civil sanctions for the same wrongful act. The court held that an acquittal in a criminal prosecution for possessing liquor on which no federal tax had been paid was a bar to a civil in rem proceeding to forfeit claimant's car as having been used in the removal, deposit and concealment of the same liquor with intent to defraud the United States of taxes. Since the two proceedings involved the same …

Court Costs - Award To Party Substantially Prevailing, Henry D. Kashouty

William and Mary Review of Virginia Law

No abstract provided.

Declaratory Judgments In Virginia, Stanley H. Mervis

William and Mary Review of Virginia Law

No abstract provided.

Federal Courts-Civil Procedure-Availability To Plaintiff Of Change Of Venue Under Title 28 U.S.C.A. 1404(A), Richard B. Gushée S.Ed.

Michigan Law Review

The plaintiffs filed a complaint in the United States District Court for the Northern District of Ohio in order to obtain service on the defendant. The plaintiff then filed a motion for an order to transfer the cause to the United States District Court for the Western District of Pennsylvania under Title 28 U.S.C.A. 1404(a) on the grounds that all the plaintiffs and witnesses resided in Pennsylvania, that it would be inconvenient and expensive to transport these witnesses to Ohio, and that the cause of action arose in Pennsylvania. Held, motion denied. Title 28 U.S.C.A. 1404(a) is not available …

Conflict Of Laws-Limitation Of Actions-Statute Of Forum Shorter Than Limitation In Foreign Statute Creating Cause Of Action, John J. Gaskell S.Ed.

Michigan Law Review

Action was brought in a United States district court of Pennsylvania to recover for a death by wrongful act which occurred in Minnesota. The action was brought within the time limit of two years allowed by the Minnesota statute, but after the period of one year designated by the Pennsylvania statute for commencement of such action. The district court gave judgment for the defendant. On appeal, held, affirmed. Federal courts in diversity cases are bound by state rules of conflict of laws, and consequently the Pennsylvania rule that no action for wrongful death can be brought in Pennsylvania after …

Equity-Financial Liability To Comply With A Decree-Imprisonment For Debt, Paul M.D. Harrison

Michigan Law Review

Testator provided that a charge amounting to $16,000 was to be made on certain devised land and that a $5,000 legacy was to be paid to plaintiff educational institution from this sum. Defendant executors reported to the court, in 1921, that the charge had been collected and that the $5,000 legacy for plaintiff had been received. The court ordered them to hold the money in trust until plaintiff might qualify to take it. Actually, as shown by the executor's final report of 1941, no part of the $5,000 had been collected and all the money in the estate had been …

The Intent Element In Contempt Of Injunctions, Decrees And Court Orders, Edward W. Rothe S.Ed.

Michigan Law Review

Recent years have seen increasing effort on the part of courts to distinguish between civil and criminal contempts. This effort has been engendered by an awareness of the different procedural and substantive aspects of the two classifications. A discussion of these aspects, as well as of the tests used to distinguish civil and criminal contempts, is beyond the scope of this paper. Suffice it to say that those tests which have been applied leave much to be desired. The lack of clarity, so evident in prevailing tests, is in part a legacy from early decisions which permitted the two types …

Process-Misnomer In Summons-Amendment, R. Lawrence Storms S.Ed.

Michigan Law Review

Plaintiff intended to sue James Brago, but by mistake used the name "Joseph Brago" in the complaint and summons. Joseph happened to be the name of intended defendant's brother. Copies of process were left with James' wife, but as sister-in-law of Joseph who resided elsewhere. When plaintiff realized the error, the statute of limitations prevented his bringing a new suit. Plaintiff's motion to amend the summons and complaint was granted. On appeal, held, order reversed so far as it purports to amend the summons. Patrick v. Brago, 4 N.J. Super. 226, 66 A. (2d) 749 (1949).

Procedure-Divisibility Of Right To Recover Damages For Injury To Person And Property Sustained In Same Accident [Carter V. Hinkle, Va. 1949]

Washington and Lee Law Review

No abstract provided.

Witnesses-Prior Conviction Of Crime To Impeach-Circumstances Of Sentencing Not Admissible, J. D. Mcleod S.Ed.

Michigan Law Review

ln an action to recover for personal injuries sustained in 1945, at which time he was a prisoner of the State of Virginia, plaintiff testified in his own behalf at the jury trial. On cross-examination, he admitted that he had been convicted of assault in 1943, that sentence had been suspended on condition that he enter the service, and that he had been sentenced to jail when he failed to enter the service. In his argument, defendant's attorney declared that the action had its inception in 1943, and emphasized that plaintiff had failed to enter the service when the sentence …

A Consideration Of The More Extended Use Of The Special Verdict, Samuel A. Driver

Washington Law Review

This discussion will cover only subdivision (a) of Rule 49 of the Federal Rules of Civil Procedure, but I feel that I should briefly distinguish it from subdivision (b), the other subdivision of the rule, since the cases reveal a surprising amount of confusion regarding them. Subdivision (a) provides that the court may require the jury to return only a special verdict in the form of special findings on each issue of fact formulated by the pleadings and the evidence. The special verdict may be in the form of either written findings or written questions, susceptible of categorical or other …

Discovery-Oral Examination-Right To, And Scope Of, Cross-Examination Under New York And Federal Procedure, Daniel A. Isaacson

Michigan Law Review

At the close of plaintiff's pre-trial examination of. defendant corporation's employee on the question of failure to make delivery of merchandise pursuant to certain contracts, attorney for defendant began to cross-examine. Plaintiff objected to this procedure but permitted the cross-examination to continue, reserving his right to make application to the court to strike out the testimony. Held, testimony stricken. There should be no cross-examination in a pre-trial examination except for the limited purpose of clarifying an answer given on direct examination, and cross-examination to elicit additional information to that already adduced by the moving party or to give a …

Legislation-Federal Tort Claims Act-Applicable To Military Personnel, B. J. George, Jr.

Michigan Law Review

An automobile containing two furloughed soldiers and their father was struck by a negligently operated army vehicle, resulting in the death of one soldier and injury to the other two occupants. In a suit against the government under the Federal Tort Claims Act the father and injured soldier recovered in their own right and the father also recovered as administrator of the deceased soldier's estate. The Circuit Court of Appeals reversed the judgments in favor of the servicemen, holding that there was an implied exception in the act prohibiting such suits because of benefits available to servicemen in the form …

Pleading And Practice-Failure To Answer Request For Admission Of Facts As Basis For Judgment On The Pleadings-Form Of Request For Admission Of Facts, Robert H. Frick

Michigan Law Review

Plaintiff filed a complaint for money owing for goods sold and delivered. Defendant filed a cross-complaint. Plaintiff filed an affirmative reply setting forth defenses to the cross-complaint, and three days later served defendant with a request that he "admit each and every allegation and averment contained in paragraphs I, II, III and IV of the plaintiff's affirmative reply to the cross-complaint of the defendants herein is true.'' Defendant failed to answer the request. Washington Rule of Practice 21 provides that such failure shall be deemed an admission of the facts submitted. The trial court granted plaintiff's motion for judgment on …

Summary Judgment, Joann R. Locke

Washington Law Review

Washington procedure is noticeably defective in the lack of a device which will dispose quickly and easily of all those actions where no material issue of fact actually exists although issues are formally set up in the pleadings. The urgent need for some such device was shown recently in the case of Weyerhaeuser Sales Co. v. Holden. Plaintiff desired to end the case summarily, as he felt sure there was no defense to his action. However, his attempt to make existing procedure serve this purpose failed. All of defendant's answer except a cross-complaint had been stricken, and plaintiff had filed …

Courts-Validity Of Contracts Restricting Venue In Actions Under The Federal Employers' Liability Act, John C. Walker S. Ed.

Michigan Law Review

Petitioner suffered injuries in the course of his duties as an employee of respondent railroad. Subsequently, respondent advanced money to petitioner and the latter agreed in writing that if his claim could not be settled he would sue only in the county or district where he resided at the time of the injury, or in the county or district where the injury was sustained. This agreement restricted petitioner's choice of venue to either a state or federal court sitting in Michigan. Ignoring the contract, petitioner sued in an Illinois court. Respondent then brought suit in the Michigan courts to enjoin …

Federal Rules Of Civil Procedure-Statute Of Limitations Not Tolled By Filing Complaint Under Rule 3, Clinton R. Ashford S. Ed.

Michigan Law Review

Plaintiff's cause of action arose out of a highway accident that occurred on October 1, 1943. Basing jurisdiction on diversity of citizenship, he brought suit in a United States District Court in Kansas. The complaint was filed on September 4, 1945, and defendant was served on December 28, 1945. In Kansas, the two-year statute of limitations applicable to such tort claims is tolled by service on the defendant, not by filing the complaint. Held, plaintiff is barred by the Kansas statute of limitations. Ragan v. Merchants Transfer & Warehouse Co., Inc., (U.S. 1949) 69 S.Ct. 1233.