Civil Procedure Commons^™

Courts-Power To Direct Verdicts Where Forbidden By State Constitution

Michigan Law Review

ln a suit for personal injuries the district court of the United States for the district of Arizona directed a verdict for the defendant on the ground that the plaintiff was guilty of contributory negligence. The constitution of Arizona, sec. 5, art. 18 provides: "The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury." Held, that this section is not binding on a federal court sitting in Arizona, and does not prevent such court from directing a verdict when …

The New Michigan Court Rules, Edson R. Sunderland

Michigan Law Review

There are two features of general interest connected with the revised system of practice which went into operation in Michigan on January 1, 1931. The first is the manner of employing the rule-making power, and the second is the content of the new rules.

Pleading And Practice Under The Revised Code, Lawrence R. Lynch

West Virginia Law Review

In a paper of limited length such as this necessarily must be, it is impracticable to discuss or even to mention many of the changes in pleading and practice contained in the Revised Code. For that reason this discussion will be confined primarily to some important and interesting changes in Chapter 56, entitled "Pleading and Practice." At the outset it may be said that the revisers have retained the common law system of pleading and procedure. They declined follow in the steps of those jurisdictions which have adopted what is known as code pleading and practice. Such changes as the …

Comments On Proposed Changes In Procedure In West Virginia, Edson R. Sunderland

West Virginia Law Review

No abstract provided.

Report To The Committee On Judicial Administration And Legal Reform Of The West Virginia Bar Association Containing Suggestions Concerning Pleading And Practice In West Virginia, Thurman W. Arnold, James W. Simonton, Harold C. Havighurst

West Virginia Law Review

No abstract provided.

The Institute's Restatement And The Michigan Law, Herbert F. Goodrich

Michigan Law Review

The task which the American Law Institute has undertaken is to make a statement of the common law, in its various branches. The end in view is not codification; indeed the idea is directly opposed to codification. It is hoped to have, when the work is completed, an accurate statement of existing common law, carefully and systematically made, from which local variations and peculiarities have been ironed out. It is hoped, in other words, to restore both accuracy and continuity to the pattern of the common law fabric as it is woven in our judicial mills.

Privity Of Parties And Attack For Fraud On Judgments Of Sister State

Michigan Law Review

An interesting recent decision in Minnesota, Schendel v. C. M. & St. P. Ry. Co., raises two important questions concerning the effect to be given in one state of the Union to a judgment rendered in the courts of another. An action was brought in Minnesota by a special administrator, there appointed, to recover damages for the death of his decedent. The accident resulting in death had occurred in Iowa while the decedent, it was claimed, was engaged in inter-state commerce, so as to bring the claim within the federal statute. To this Minnesota action the defendant set up …

Simplified Civil Procedure Under The Wisconsin Code

Michigan Law Review

A rare illustration of the possibility of simplified procedure, under the modern codes, is presented by a recent decision of the Wisconsin court. Singularly enough the case was also productive of some very interesting problems of substantive law, and will be commented upon, from that standpoint, elsewhere in this publication. As for the fact situation, it will be sufficient for our present purposes, to note that the plaintiff was injured, while riding as a guest, as the result of a collision occasioned by the negligent driving of her host and the operator of another automobile. The guest and the driver …

Conciliation Of Controversies

Michigan Law Review

It is a matter of common criticism more or less just that the administration of law is unnecessarily tedious and expensive. Particularly among those of the poorer classes is it true that the delay and expense incident to the enforcement of small claims amounts to a practical denial of justice. With a view toward relieving this situation, North Dakota adopted the first state-wide act for the conciliation of controversies. Chapter 38, Laws of North Dakota, 1921. That act has recently been put to the test and upheld in the case of Klein v. Hilton (N. D., 1922), 191 N. W. …

The Reform Of Civil Procedure, Edson R. Sunderland

Articles

Professor Sunderland addresses the pernicious involvement of legislators in legal reform, contrary to the English model. This duty should be left to those who know the Law better than any: "The courts constitute the judicial department of the state, and the judges who preside and the lawyers who practice in them are the selected group of trained men charged with the responsibility for administering the law."

The Usefulness Of Intervention As A Remedy In Attachment, Edson R. Sunderland

Articles

While rules of procedure are not saved from the rude hand of the reformer by the "due process" guarantees of our constitutions, they do rest, nevertheless, under the very efficient protection of professional conservatism. Such rules are looked upon by the bench and bar as their own special concern, and innovations in this field must maintain the burden of proving their character before both the lawyer members of the legislature and the lawyers and judges who interpret them in the course of litigation. It would be natural, therefore, to expect that a proposed reform in procedure would have to meet …

Declaratory Judgment - Declaring Rights Under The Guise Of Granting An Injunction, Edson R. Sunderland

Articles

It has often been held that a party may obtain a judicial determination of his rights in respect to legislation alleged to be invalid, by means of an application to a court of equity for an injunction restraining the enforcement of the statute. Ex parte Young (1907) 209 U. S. 123, is the leading case of this type. There, a railroad rate statute was involved, which required compliance by all railroad companies in the state, under the threat of heavy penalties. The railroad actually violated the provisions of the statute after an injunction had been obtained by a stockholder restraining …

Declaratory Judgments, Ralph W. Aigler

Articles

The Declaratory Judgments Act of Michigan (Act No. 150, P. A. 1919) provided as follows: (Sec. 1) "No action or proceeding in any court of record shall be open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby, and the court may make binding declarations of rights whether any consequential relief is or could be claimed, or not, including the determination, at the instance of anyone claiming to be interested under a deed, will or other written instrument, of any question of construction arising under the instrument and a declaration of the rights …

Declaratory Judgments, Edson R. Sunderland

Articles

The widespread interest in this new form of remedial instrument, which was somewhat dashed by the recent decision of the Michigan Supreme Court in Anway v. Grand Rapids Ry. Co. (1920), 211 Mich. 59, holding declaritoty relief to be non-judicial and outside the constitutional power of courts (19 MICH. LAW REV. 86), has been revived by the action of the legislature of Kansas in enacting a declaratory judgment statute almost identical with the Michigan act. This was done with full knowledge of the decision in the Anway case, and inasmuch as it is well known that some of the judges …

Logic V Common Sense In Pleading, Nathan Isaacs

Michigan Law Review

Michigan's experiment in pleading--or the suppression of pleading-is being carefully watched throughout the country. Not that it is likely that many other states will go to the extreme, for it is an extreme, of substituting notice-pleading for essential-fact-pleading: but it is a fact that even the code states are experiencing a reaction in that general direction. It will probably lead to a multiplication of their "short forms," rather than to a sweeping provision that

The Michigan Judicature Act Of 1915, Edson R. Sunderland

Articles

IN 1848 a wave of reform in judicial procedure began to sweep over the United States. In that year the legislature of New York enacted the Code of Civil Procedure, a statute of far-reaching importance, for it became the source of and the model for similar legislation in almost two-thirds of the States in the Union.

Procedural Reform, Robert Mcmurdy

Michigan Law Review

In legal fetters, bound upon us largely by our own consent, the profession struggles, afraid to free itself, partly because of the word reform with its accepted implications.

The Demurrer Under The Civil Code Of Practice In Kentucky, Basil Duke Sartin

Kentucky Law Journal

No abstract provided.

The Proposed Michigan Judicature Act, Edson R. Sunderland

Articles

The Michigan Legislature, at its last session, passed an act (No. 286, Public Acts of 1913) providing for the appointment of a Commission to revise and consolidate the laws of the State relating to procedure. The Governor appointed Alva M. Cummins, J. Clyde Watt, and Mark W. Stevens as members of this commission, and the result of their labors has just appeared in the form of a proposed bill regulating the entire subject of procedure in all the courts of the State. The bill is a long one, embracing 565 printed pages, but it is much less voluminous than the …

The Form Of Summons Under The Recent Michigan Judicature Act, W. Gordon Stoner

Articles

It would be rather remarkable if in revising such a large portion of the statutes as was undertaken by the Commission on Revision and Consolidation of Statutes of the State of Michigan, appointed in 1913, which reported to the legislature the recently enacted Judicature Act (Public Acts of Michigan, 1915, § 314), some ambiguity or uncertainty were not to appear in the revision. The Judicature Act is no exception to the general rule, as the lawyer who attempts to begin suit by summons under it will discover at the very outset.

May An Atheist Testify By Virtue Of Sections 605-606 Of The Civil Code Of Practice Of Kentucky?, Basil Duke Sartin

Kentucky Law Journal

No abstract provided.

Note And Comment, Gordon W. Stoner, Newton K. Fox, Walle W. Merritt, Albert E. Meder

Michigan Law Review

The Power of a Court to Compel a jury to Render its Verdict in Accordance with a Peremptory Instruction; The Liability of Municipal Corporations in the Discharge of Public or Governmental Duties and of Private or Corporate Duties; Some views of the Nature and Effect of Corporateness; Mitigation of Damages or Substituted Contract; Limitation of the Amount of a Carrier's Liability

Prosecuting And District Attorneys, Henry M. Bates

Book Chapters

Professor Bates defines his subject matter "Prosecuting and district attorneys are judicial officers of the state, within their respective districts, although not officers of the state at large. Under some statutes they are county officers, while under others they are not, but are circuit or district officers.... Like other attorneys, prosecuting and district attorneys are officers of the court; but they are not a part of the court because of their office." A two-page outline precedes the entry.

Note And Comment, Michigan Law Review

Michigan Law Review

A Lesson in Patriotism from Pennsylvania; The Effect of a Motion by Each Party for a Directed Verdict; The Right of Privacy; Mutual Mistake as to the Quantity of Land Conveyed; The Privilege; Riparian Owner's Title to Contiguous Islands;

A Treatise On The Powers And Duties Of The Justices Of The Peace In The State Of Michigan, Under Chapter Ninety-Three Of The Revised Statutes Of 1846, Being Chapter Thirty-Four Of The Compiled Laws Of 1897; With Practical Forms And An Appendix Containing The Justice Court Acts Of Those Cities Having Provisions Differing Materially From The General Justice Court Act., Alexander R. Tiffany, Victor H. Lane

Books

“Judge Alexander R. Tiffany, its author, put out the first edition of this work in 1849. In the years 1851, 1858 and 1866, he put out the second, third and fourth editions, respectively. The fifth edition was published in 1873 with Judge Andrew Howell as its editor and he edited the succeeding editions to the ninth inclusive ….

“The editorship of the present edition has been undertaken at the request of the family of Judge Tiffany, and while the editor is persuaded that better can be done, yet it is hoped that the present edition may share the favor so …

Note And Comment, Michigan Law Review

Michigan Law Review

A National Incorporation Law; The Northern Securities Case; Controversies Between States; Liability of Members of Congress for Bribery; Exempting of Lawyers from Service of Civil Process While Attending Court; Law Governing the Validity of a Note Executed and Delivered in One State, But Payable in Another

Material Taken From Streets In Grading--Rights Of Adjoining Lot-Owner, Thomas M. Cooley

Articles

"In grading a street for the purpose of paving, it was necessary to remove earth which the city had no occasion for, and the street commissioner sold the same to a party who removed and used it. In an action to recover the purchase-price the purchaser defended, claiming that the city did not own the earth, but that it was owned by the adjoining lot-owners..."