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Articles 301 - 330 of 607

Full-Text Articles in Civil Procedure

Civil Procedure - Service Of Process Under Nonresident Motorist Statute - Effect Of Death Of Nonresident Defendant, Warren K. Urbom S.Ed.. Nov 1953

Civil Procedure - Service Of Process Under Nonresident Motorist Statute - Effect Of Death Of Nonresident Defendant, Warren K. Urbom S.Ed..

Michigan Law Review

A wife sued for the wrongful death of her husband, which was allegedly caused by a nonresident defendant's negligent operation of his automobile on a Wisconsin highway while the plaintiff's husband was a passenger therein. Service of process was made on the Commissioner of the Motor Vehicle Department in Wisconsin, and copies of the summons and complaint were mailed to defendant in Illinois in accordance with the Wisconsin nonresident motorist statute. Shortly thereafter, before a judgment was rendered, defendant died. Plaintiff sought to revive the action against defendant's administrator by serving notice of the filing of a petition for revival …

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Summary Judgment Under The Federal Rules When An Issue Of Fact Is Presented, Mac Asbill, Willis B. Snell Jun 1953

Summary Judgment Under The Federal Rules When An Issue Of Fact Is Presented, Mac Asbill, Willis B. Snell

Michigan Law Review

Rule 56 of the Federal Rules of Civil Procedure introduced to federal practice the summary judgment procedure, which had been developed previously in England and several of the states. The scope of rule 56 is the broadest possible, since the rule provides that any party may move for a summary judgment in any type of civil action. Rule 56(c) provides that the court shall grant a motion for summary judgment "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving …

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Federal Procedure - Judgments - Motion For Judgment Notwithstanding The Verdict Required Before Appellate Court Can Enter Judgment, Joseph M. Kortenhof, S.Ed. May 1953

Federal Procedure - Judgments - Motion For Judgment Notwithstanding The Verdict Required Before Appellate Court Can Enter Judgment, Joseph M. Kortenhof, S.Ed.

Michigan Law Review

Petitioner brought suit against respondent railroad under the Jones Act for the wrongful death of her husband. At the completion of all the evidence, the railroad moved to dismiss the complaint and further asked for a directed verdict. The trial court submitted the case to the jury reserving its decision on the motion. A verdict was returned for the petitioner. Within ten days of the verdict, the railroad moved to have the verdict set aside on the ground that it was excessive, contrary to the law, to the evidence, and to the weight of the evidence. Two months later the …

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Civil Procedure-Joinder Of Causes Of Action In Michigan, J. David Voss May 1953

Civil Procedure-Joinder Of Causes Of Action In Michigan, J. David Voss

Michigan Law Review

Plaintiffs were the owners of several lots, and used their respective properties as residences. Defendants, manufacturers of cement and concrete products, operated several large trucks in their business. Plaintiffs filed a declaration to recover damages for injuries to their properties sustained as a result of the loud noises, vibrations, and cement dust caused by the defendants' trucks when using an alley leading to defendants' place of business. The defendants' motion for dismissal on grounds of misjoinder of parties and causes of action was overruled. On appeal, held, reversed. Owners of property are not entitled to be joined in one …

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Civil Procedure-Statute Of Limitations-Possibility Of Service Under Nonresident Motorist Service Act As Preventing Tolling Of Statute, James H. Loprete S.Ed. Mar 1953

Civil Procedure-Statute Of Limitations-Possibility Of Service Under Nonresident Motorist Service Act As Preventing Tolling Of Statute, James H. Loprete S.Ed.

Michigan Law Review

Plaintiffs, while riding as passengers in defendant's automobile, were injured in an accident in Iowa. Two of the four plaintiffs brought suit in Kansas against defendant, a citizen of Kansas, but their suits were dismissed upon the sustaining of demurrers. The four then sued defendant in Iowa, obtaining service upon him under the nonresident motorist service act Defendant pleaded the statute of limitations, and plaintiffs countered with the tolling statute. Issue was raised over the interpretation to be given the word "nonresident" in the tolling statute. Plaintiff contended it was to be given a literal interpretation, that is, that the …

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Civil Procedure-Jurisdiction-Amount In Controversy In Inferior Court Where Cause Of Action Is Split, John F. Spindler S.Ed. Mar 1953

Civil Procedure-Jurisdiction-Amount In Controversy In Inferior Court Where Cause Of Action Is Split, John F. Spindler S.Ed.

Michigan Law Review

Plaintiff, a manufacturer's agent, sued his employer in the Municipal Court, Civil Division, Washington, D. C. in two separate actions to recover commissions on his contract of employment. The two actions were consolidated for trial. At the trial defendant moved to dismiss for want of jurisdiction on the ground that this was but one cause of action and, while neither of the claims individually exceeded the jurisdictional maximum, the total claimed in both suits did exceed it. The motion to dismiss was denied, and after trial, judgments were entered for plaintiff in both actions. Defendant appealed. The Municipal Court of …

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Civil Procedure-Habeas Corpus-Exhaustion Of State Remedies In Rendition Cases, Alfred W. Blumrosen Feb 1953

Civil Procedure-Habeas Corpus-Exhaustion Of State Remedies In Rendition Cases, Alfred W. Blumrosen

Michigan Law Review

Respondent, a convict, was apprehended in Ohio after escaping from an Alabama prison. He attempted to prevent rendition by petitioning the Ohio courts for a writ of habeas corpus, alleging that he had suffered cruel and unusual punishment in the Alabama prison contrary to the Fourteenth Amendment and, if forced to return, would be subject to further brutal treatment. His petition was denied at all levels in the Ohio courts and the United States Supreme Court denied certiorari. A similar petition was then denied by the Federal District Court in Ohio, but the court of appeals reversed without opinion and …

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Civil Procedure-Parties-Real Party In Interest When Insurer Has Equitable Interest In Claim, Warren K, Urbom S.Ed. Feb 1953

Civil Procedure-Parties-Real Party In Interest When Insurer Has Equitable Interest In Claim, Warren K, Urbom S.Ed.

Michigan Law Review

Plaintiff sued for damages to his fruit and grocery market which were allegedly caused by the negligence of defendant. Interrogatories were submitted by defendant designed to determine whether or not plaintiff had been paid the full amount of his loss by an insurance company and had assigned his claim to that company. The trial court sustained a motion to strike the interrogatories. On appeal, held, reversed, two judges dissenting. Although a tortfeasor cannot defeat an action by the insured by showing full subrogation of the insurer, he can plead an assignment of the insured's claim to show that the …

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Civil Procedure-Right Of Impleader Under Michigan Contribution Statute, W. J. Roper Feb 1953

Civil Procedure-Right Of Impleader Under Michigan Contribution Statute, W. J. Roper

Michigan Law Review

Plaintiff, a resident of Michigan, brought a negligence action against defendant, an Illinois corporation, for personal injury in the Federal District Court for the Eastern District of Michigan. The defendant moved to implead a citizen of Michigan and a Michigan corporation as third party defendants on the theory that under the Michigan Contribution Statute as concurrent tortfeasors they would be liable to him for part of the judgment in the event that plaintiff recovered in the suit. The court granted the motion and the defendant filed its third party complaint. Plaintiff then moved to dismiss the third party complaint. Held …

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Vanderbilt: Cases And Materials On Modern Procedure And Judicial Administration, Charles W. Joiner Feb 1953

Vanderbilt: Cases And Materials On Modern Procedure And Judicial Administration, Charles W. Joiner

Michigan Law Review

A Review of CASES AND MATERIALS ON MODERN PROCEDURE AND JUDICIAL ADMINISTRATION by Arthur T. Vanderbilt.

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Civil Procedure-Parties-Intervention Denied Where Applicant Asserts An Independent Cause Of Action In Damage Suit, Richard P. Matsch S.Ed. Dec 1952

Civil Procedure-Parties-Intervention Denied Where Applicant Asserts An Independent Cause Of Action In Damage Suit, Richard P. Matsch S.Ed.

Michigan Law Review

ln plaintiff's action for property damages sustained in a collision with defendant's automobile, defendant's wife filed a petition of intervention for her claim against plaintiff for personal injuries received in the accident. Plaintiff's motion to strike the petition of intervention was overruled by the trial court. On appeal, held, reversed. Petitioner's cause of action was independent of the controversy between plaintiff and defendant and did not fall within the provisions of the court rule allowing intervention. Edgington v. Nichols, (Iowa 1951) 49 N.W. (2d) 555.

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Federal Procedure-Change Of Venue-Congestion Of Docket As A Factor Affecting Transfer Under Section 1404(A), Peter Van Domelen S.Ed. Dec 1952

Federal Procedure-Change Of Venue-Congestion Of Docket As A Factor Affecting Transfer Under Section 1404(A), Peter Van Domelen S.Ed.

Michigan Law Review

Plaintiff sued in the United States District Court for the Southern District of New York to recover damages under the Jones Act for illness sustained while he was serving as a seaman on the defendant's steamship. The defendant moved to transfer the action to the United States District Court for the Northern District of California pursuant to Title 28 U.S.C. § 1404(a) which provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Evidence introduced showed that …

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Federal Procedure-Jurisdiction-No Appeal Allowed Under Rule 54(B) When Separated Claim Not Final, Wilber M. Brucker, Jr. S.Ed. Dec 1952

Federal Procedure-Jurisdiction-No Appeal Allowed Under Rule 54(B) When Separated Claim Not Final, Wilber M. Brucker, Jr. S.Ed.

Michigan Law Review

Flegenheimer sued Manitoba Sugar Co., a Canadian Corporation, in a Vermont state court for breach of an employment contract to gain jurisdiction, Flegenheimer attached parcels of beet pulp which he claimed were the property of the Manitoba Co. After this action was removed to the federal district court, General Mills, Inc., was granted leave to intervene to establish ownership of the beet pulp. The claim of General Mills was dismissed after being heard on the merits. The order dismissing the claim contained a determination that "no just reason for delay" existed, and it therefore directed an "entry of judgment" under …

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Federal Procedure-Removal Denied To Lmpleaded Party Under 28 U.S.C. 1441(C), Robert G. Russell S. Ed. Nov 1952

Federal Procedure-Removal Denied To Lmpleaded Party Under 28 U.S.C. 1441(C), Robert G. Russell S. Ed.

Michigan Law Review

Plaintiff sued to recover indebtedness of $7000, to foreclose a chattel mortgage, and to enjoin a local bank from permitting the accounts of the debtor to be withdrawn. Defendant then filed a cross-complaint, as authorized by state procedure, against a third party nonresident garnishee to recover damages for breach of contract and money owed in the sum of $35,000. The cross-defendant removed the case to the United States district court. Held, although the cross-complaint stated a separate and independent cause of action, it could not be the basis of removal since 28 U.S.C. §1441 (c) contemplates only the removal …

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Federal Procedure-Jurisdiction-Effect Of Disclaimer In Diversity Of Citizenship Cases, Richard W. Pogue S. Ed. Nov 1952

Federal Procedure-Jurisdiction-Effect Of Disclaimer In Diversity Of Citizenship Cases, Richard W. Pogue S. Ed.

Michigan Law Review

Plaintiff partnership brought suit in a federal court, alleging that defendants were citizens of Kentucky, and that all partners but one were non-citizens of Kentucky. The Kentucky partner was named as a defendant because of his refusal to join the other partners in the action, whereupon he filed an answer and disclaimer, in which he disclaimed any interest in the suit. Other defendants answered contesting the jurisdiction of the court on the ground that the Kentucky partner was required to be joined with the parties plaintiff, thus destroying the necessary diversity of citizenship. The district court dismissed the Kentucky partner, …

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Constitutional Law-Civil Procedure-Due Process Requirements For State Jurisdiction Over Foreign Corporations, Richard D. Rohr Jun 1952

Constitutional Law-Civil Procedure-Due Process Requirements For State Jurisdiction Over Foreign Corporations, Richard D. Rohr

Michigan Law Review

The plaintiff, a nonresident of Ohio, brought an action in Ohio against the defendant, a sociedad anonima organized under the laws of the Philippine Islands, on claims which neither arose in Ohio nor were connected with the defendant's activities in Ohio. Defendant's president, who was also its general manager and principal stockholder, had returned to his home in Ohio when the company's mining operations were suspended by the Japanese occupation of the Philippines. During the war years, he conducted such business as was possible in Ohio, holding directors' meetings, carrying on correspondence, maintaining bank accounts, but the defendant did not …

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Federal Procedure-Removal Of Causes-Meaning Of "Receipt By Defendant" When Service Is On A Nonresident Motorist, Gordon I. Ginsberg S.Ed. Apr 1952

Federal Procedure-Removal Of Causes-Meaning Of "Receipt By Defendant" When Service Is On A Nonresident Motorist, Gordon I. Ginsberg S.Ed.

Michigan Law Review

As a result of an automobile accident in Missouri, the plaintiff, a resident of Missouri, brought a damage action in Missouri against the defendant, a resident of Illinois. Service was had on the defendant by serving the Secretary of State of Missouri and sending notice by registered mail to the defendant, pursuant to the Missouri nonresident motorist statute. Service was received by the Secretary of State on January 13, 1951, and notice was received by the defendant on January 20, 1951. The defendant removed the cause to the federal district court on February 9, 1951. The plaintiff moved to remand …

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Civil Procedure-Jurisdiction-Commission Of Isolated Tort By Foreign Corporation As "Doing Business" Within The State, W. H. Bates S.Ed. Mar 1952

Civil Procedure-Jurisdiction-Commission Of Isolated Tort By Foreign Corporation As "Doing Business" Within The State, W. H. Bates S.Ed.

Michigan Law Review

Plaintiff, a Vermont resident, brought action for damages in the Vermont court, alleging negligence of defendant in re-roofing plaintiff's house located in that state. Defendant, a Massachusetts corporation, had not qualified to do business in Vermont, nor had it appointed an agent to receive service therein. There was no evidence to indicate that defendant was actively engaged in business there. Substituted service was made upon defendant through the Secretary of State of Vermont as authorized by a statute. The statute stipulated that the term "doing business" included those instances in which a foreign corporation made a contract in Vermont with …

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Constitutional Law-Due Process-Restrictions Upon Advertising, Joseph M. Kortenhof Mar 1952

Constitutional Law-Due Process-Restrictions Upon Advertising, Joseph M. Kortenhof

Michigan Law Review

In its efforts to combat gasoline price wars and the fraud that allegedly accompanied them, the City of Pontiac enacted an ordinance designed to restrict the scope of gasoline advertising. It provided that: "No sign or placard stating the price or prices of gasoline other than such signs or placards as hereinabove provided [signs not larger than 12 by 12 inches attached to pumps] shall be posted or maintained on the premises on which said gasoline is sold or offered for sale." Defendant retailed gasoline; by combining hauling and retailing into one operation, savings of about four cents a gallon …

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Constitutional Law-Due Process Of Law-Admissibility Of Confessions Under The Fourteenth Amendment, Harold G. Christensen S.Ed. Feb 1952

Constitutional Law-Due Process Of Law-Admissibility Of Confessions Under The Fourteenth Amendment, Harold G. Christensen S.Ed.

Michigan Law Review

The Supreme Court announced in 1936 that under certain circumstances the admission of a confession into evidence by a state court could amount to a denial of due process as guaranteed by the Fourteenth Amendment. Since that time there has been an increasing number of appeals seeking reversal of a conviction upon that ground and an expansion by the Court of the types of factual situations which will render a confession inadmissible. That this expansion reached its apex with the case of Watts v. Indiana and companion cases decided in 1949 appears probable in the light of a recent denial …

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Civil Procedure-Judgments--Plea Of Guilty In Criminal Action As Basis For Collateral Estoppel In Later Civil Action, Wilber M. Brucker, Jr. S.Ed. Feb 1952

Civil Procedure-Judgments--Plea Of Guilty In Criminal Action As Basis For Collateral Estoppel In Later Civil Action, Wilber M. Brucker, Jr. S.Ed.

Michigan Law Review

Defendant had pleaded guilty to specific criminal charges under the False Claims Act. The United States then sued defendant to recover civil damages under the Contract Settlement Act on the same fact situation. When defendant attempted to contest the verity of facts to which he had pleaded guilty in the earlier criminal action, the United States attempted to have defendant estopped as a matter of res judicata, asking the court for a directed verdict as to the issues decided in the criminal action. Held, directed verdict as to those issues to which the defendant had pleaded guilty would be …

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Civil Procedure-Judgments-Res Judicata Effect Of Dismissal With Prejudice, David F. Ulmer S.Ed. Feb 1952

Civil Procedure-Judgments-Res Judicata Effect Of Dismissal With Prejudice, David F. Ulmer S.Ed.

Michigan Law Review

Plaintiff brought an action in the circuit court against Crane for breach of an alleged trust agreement. When Crane died, his estate, which was substituted as defendant, moved to dismiss the action, alleging that plaintiff's cause of action was barred by laches and by a previous divorce settlement. Plaintiff having failed to file counter affidavits, the court dismissed the complaint and allowed plaintiff twenty days to file an amended complaint. When he failed to do so, the court dismissed the action "with prejudice." Plaintiff's later claim, filed in the probate court, but based on the same trust agreement, was allowed. …

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Federal Procedure-Jurisdiction-Determination Of Amount In Controversy In Class Actions Under Federal Rule 23, James W. Callison Feb 1952

Federal Procedure-Jurisdiction-Determination Of Amount In Controversy In Class Actions Under Federal Rule 23, James W. Callison

Michigan Law Review

Plaintiff owned 50 shares of common stock valued at $950. She brought an action in behalf of herself and all other stockholders to enjoin a sale of unissued stock by the corporation to its president, claiming a violation of her preemptive right. The district court ruled on the merits. On appeal, held, the plaintiff's interest was but a small fraction of the $3,000 required to invoke the jurisdiction of the federal courts. Although the action was representative, the claims of other stockholders in a like situation could not be cumulated. Ames v. Mengel Co., (2d Cir. 1951) 190 …

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Federal Procedure-Juries-Right To Jury Trial In Actions On National Service Life Insurance Policy Claims, Morris G. Shanker S.Ed. Feb 1952

Federal Procedure-Juries-Right To Jury Trial In Actions On National Service Life Insurance Policy Claims, Morris G. Shanker S.Ed.

Michigan Law Review

Plaintiff brought an action against the United States on a National Service Life Insurance policy in a federal district court. Timely demand for trial by jury was made in accordance with Federal Rule 38. Held, the plaintiff was entitled to a trial by jury. That section of the Judicial Code which reenacts the Tucker Act and denies jury trials in contract actions against the United States is not applicable to National Service Life Insurance claims. Williams v. United States, (D.C. Tex. 1951) 95 F. Supp. 672.

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Civil Procedure-Judgments-Collateral Attack On Decree Of Distribution Of A Probate Court, David W. Rowlinson Jan 1952

Civil Procedure-Judgments-Collateral Attack On Decree Of Distribution Of A Probate Court, David W. Rowlinson

Michigan Law Review

Testator's will devised a tract of land to his three nieces and directed that the nieces should not sell or dispose of the land for twenty years after his death. This provision was incorporated in the decree of the probate court distributing the land to the three nieces. After the decree of distribution had become final, one of the nieces brought the present action for partition. Over the objection that the decree was conclusive and forbade this type of alienation, the trial court ordered partition. On appeal, held, affirmed. The condition restraining alienation for twenty years is forbidden by …

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Constitutional Law-Due Process-Bill Of Attainder-Loyalty Oaths For City Employee, James I. Huston Jan 1952

Constitutional Law-Due Process-Bill Of Attainder-Loyalty Oaths For City Employee, James I. Huston

Michigan Law Review

In 1948, pursuant to an amendment to its charter, Los Angeles passed an ordinance which provided that all city employees must (1) take an oath that they did not espouse, and had not espoused within five years prior to the effective date of the ordinance, the forceful overthrow of the government; that they were not, nor had they been within the same period, affiliated with a group espousing such aims, and that they would not join any such group while in city employ, and (2) execute an affidavit relating whether they had ever belonged to the Communist Party, and if …

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Federal Procedure-Removal Jurisdiction-Jurisdictional Estoppel, Paul M.D. Harrison S.Ed. Jan 1952

Federal Procedure-Removal Jurisdiction-Jurisdictional Estoppel, Paul M.D. Harrison S.Ed.

Michigan Law Review

Respondent sued petitioner, a Florida corporation, the Indiana Lumbermen's Mutual Insurance Company, an Indiana corporation, and Joe Reiss, a citizen of Texas, in a Texas state court. The complaint asked for relief in the alternative for a fire loss suffered by respondent On the joint petition of the two corporate defendants, the case was removed to the federal court under section 1441(c) of the United States Judicial Code. Respondent unsuccessfully moved to remand the case, and, after trial of the case to a jury, a judgment in favor of the respondent was awarded against the petitioner alone. Petitioner's motion to …

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Federal Procedure-Mandamus-Use To Prevent Change Of Venue, Richard J. Darger S. Ed. Dec 1951

Federal Procedure-Mandamus-Use To Prevent Change Of Venue, Richard J. Darger S. Ed.

Michigan Law Review

Petitioners instituted a suit in the District Court for the Southern District of California seeking damages for alleged patent infringement. That court ordered the case transferred to the District Court for the District of Delaware on the ground that venue was not properly laid in the Southern District of California. Then petition was made to the Court of Appeals for the Ninth Circuit for mandamus to compel the judge of the lower court to withdraw the order of transfer. Held: petition denied. Mandamus will issue to prevent a transfer of a case to the district court of another circuit …

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Federal Procedure-Change Of Venue On Motion Of The Plaintiff, David F. Ulmer S. Ed. Dec 1951

Federal Procedure-Change Of Venue On Motion Of The Plaintiff, David F. Ulmer S. Ed.

Michigan Law Review

Plaintiff, a resident of California, was injured on defendant corporation's premises in Nevada. Being unable to serve defendant in California, plaintiff started a negligence action in the Federal District Court in Nevada and then moved for a change of venue to the proper Federal District Court in California under section 1404(a) of the Judicial Code. The Federal District Court of Nevada overruled plaintiff's motion. On appeal, held, affirmed. The requirement under 1404(a) that the action be transferred to any district "where it might have been brought" precludes transfer to a forum where the defendant was not amenable to process. …

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Federal Procedure-Venue-Applicability Of Section 1404(A) Of New Title 28 To Anti-Trust Suits, Morris G. Shanker S. Ed. Dec 1951

Federal Procedure-Venue-Applicability Of Section 1404(A) Of New Title 28 To Anti-Trust Suits, Morris G. Shanker S. Ed.

Michigan Law Review

Working directly from a branch office in Washington, D.C., defendant corporation solicited orders and distributed films in the state of Virginia, although it had not registered as a foreign corporation in that state. Alleging that the defendant had violated the anti-trust laws by its activities in Virginia, plaintiff brought a civil action for damages and injunctive relief in the United States District Court for the District of Columbia. Pursuant to section 14O4(a) of Title 28 U.S.C. defendant moved to transfer the action to the District Court for the Eastern District of Virginia. Held, since the defendant was not transacting …

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