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University of Michigan Law School

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Articles 361 - 390 of 607

Full-Text Articles in Civil Procedure

Process-Misnomer In Summons-Amendment, R. Lawrence Storms S.Ed. Mar 1950

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).

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Witnesses-Prior Conviction Of Crime To Impeach-Circumstances Of Sentencing Not Admissible, J. D. Mcleod S.Ed. Mar 1950

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 …

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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 Feb 1950

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 …

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Courts-Validity Of Contracts Restricting Venue In Actions Under The Federal Employers' Liability Act, John C. Walker S. Ed. Feb 1950

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 …

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Discovery-Oral Examination-Right To, And Scope Of, Cross-Examination Under New York And Federal Procedure, Daniel A. Isaacson Feb 1950

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 …

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Federal Rules Of Civil Procedure-Statute Of Limitations Not Tolled By Filing Complaint Under Rule 3, Clinton R. Ashford S. Ed. Feb 1950

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.

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Legislation-Federal Tort Claims Act-Applicable To Military Personnel, B. J. George, Jr. Feb 1950

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 …

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Discovery-Attorney-Client Privilege-Statements By Client To Insurer Before Attorney Employed, Colvin A. Peterson, Jr. S. Ed. Jan 1950

Discovery-Attorney-Client Privilege-Statements By Client To Insurer Before Attorney Employed, Colvin A. Peterson, Jr. S. Ed.

Michigan Law Review

Plaintiff, suing for personal injuries suffered in an automobile collision, sought discovery of statements made by defendant to his insurer, both before and after an attorney had been employed by the insurer pursuant to its contract with defendant. Defendant contended that such statements were within the attorney-client privilege. On appeal from an order denying discovery, held, affirmed. The statements were intended as a communication by defendant to the attorney ultimately to be retained for him by his insurer, and the insurer was the agent of defendant to transmit the statements to the attorney when selected. Hollien v. Kaye, …

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Constitutional Law-Due Process-Punishment For Direct Contempt Of Court, William R. Worth Jun 1949

Constitutional Law-Due Process-Punishment For Direct Contempt Of Court, William R. Worth

Michigan Law Review

Opposing counsel's objection to material in petitioner's opening statement to the jury was sustained. When petitioner rephrased his statement, the trial court, feeling that he was still trying to get inadmissible material before the jury, threatened to "declare a mistrial if you mess with me two minutes and a half, and fine you besides.'' Petitioner took an exception to the conduct of the court, and was immediately fined $25. His protests led to successive increases in penalty, culminating in a $100 fine and three days in jail. The Supreme Court of Texas denied habeas corpus on the ground that the …

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Federal Courts-Detected Verdicts In Civil Actions, Zolman Cavitch May 1949

Federal Courts-Detected Verdicts In Civil Actions, Zolman Cavitch

Michigan Law Review

Juries must answer to questions of fact and judges to questions of law. This is the fundamental maxim acknowledged by the Constitution. When no fact question is present, no right to jury trial in a civil suit exists, and the constitutional guaranty is, therefore, not violated by the exercise of control by the court in keeping the jury to determination of questions of fact or in keeping it within the bounds of reason. One of the most important and often used methods of control is the directed verdict, whereby the court peremptorily instructs the jury to bring in a verdict …

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Appeal And Error-Appeals In Forma Pauperis-Necessity For Attorney Hired On Contingent Fee To File Affidavit Of His Poverty, J. D. Mcleod May 1949

Appeal And Error-Appeals In Forma Pauperis-Necessity For Attorney Hired On Contingent Fee To File Affidavit Of His Poverty, J. D. Mcleod

Michigan Law Review

Relying upon the applicable statute, petitioner filed a motion for appeal in forma pauperis in a federal district court. The motion was denied on the ground, inter alia, that petitioner's attorney had filed an insufficient affidavit of poverty. The court assumed that the attorney was employed on contingent fee. The denial of the motion was affirmed by the circuit court of appeals. On further appeal, held, reversed. An attorney is not required to file an affidavit of his poverty as a condition to proceedings in forma pauperis, even though he is employed on contingent fee. Adkins v. …

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Constitutional Law-Due Process-Freedom Of Speech-Limitations On Use Of Sound Amplification Devices, Bernard Goldstone S. Ed. May 1949

Constitutional Law-Due Process-Freedom Of Speech-Limitations On Use Of Sound Amplification Devices, Bernard Goldstone S. Ed.

Michigan Law Review

Appellant used sound equipment mounted on his truck to comment on a labor dispute. He was convicted in a police court of violating a city ordinance which prohibited the use on any public street of sound amplifying devices emitting loud and raucous noises. The intermediate court of appeal of New Jersey, in affirming the conviction, construed the ordinance to be an absolute prohibition. The conviction was sustained on appeal to the highest court of New Jersey by an evenly divided court of twelve justices. On appeal to the United States Supreme Court, held, affirmed. Justice Reed, joined by Chief …

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Soviet Civil Law: Private Rights And Their Back-Ground Under The Soviet Regime Comparative Survey And Translation Of The Civil Code; Code Of Domestic Relations; Judiciary Act; Code Of Civil Procedure; Laws On Nationality, Corporations, Patents, Copyright, Collective Farms, Labor; And Other Related Laws. Volume 2., Vladimir E. Gsovski Jan 1949

Soviet Civil Law: Private Rights And Their Back-Ground Under The Soviet Regime Comparative Survey And Translation Of The Civil Code; Code Of Domestic Relations; Judiciary Act; Code Of Civil Procedure; Laws On Nationality, Corporations, Patents, Copyright, Collective Farms, Labor; And Other Related Laws. Volume 2., Vladimir E. Gsovski

Michigan Legal Studies Series

For centuries, jurisprudence has been built up and developed in terms of a more or less comparable body of concepts: family, private ownership, individual rights, and the State, the necessity of which was challenged in the original program in the name of which the soviet government assumed the reins of power. What then is the fate under the soviet regime of the legal concepts thus far operative in all civilized societies? This book seeks to offer material for the answer to questions of this nature. The principal aim of the author has been to inquire into the legal protection and …

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Libel-Limitation Of Actions-"Single Publication Rule" Extended To Include Books, W. M. Myers Jan 1949

Libel-Limitation Of Actions-"Single Publication Rule" Extended To Include Books, W. M. Myers

Michigan Law Review

In November, 1941, defendant book publishers commenced distribution of a book containing allegedly libelous statements concerning plaintiff. Thereafter, there were seven additional printings, the last in December, 1943, distribution of which began in March, 1944. Although more than 12,000 copies of the book were sold prior to this reprinting, only 60 copies were sold from stock during the year immediately preceding July 2, I 946, the date plaintiff instituted his action. To determine whether the action was barred by the statute of limitations, the following question was certified to the New York Court of Appeals: "Do sales from stock by …

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Venue-Forum Non Conveniens-Transfer Of Venue In Federal Employers' Liability Cases Under The New Judicial Code, Donald D. Davis Jan 1949

Venue-Forum Non Conveniens-Transfer Of Venue In Federal Employers' Liability Cases Under The New Judicial Code, Donald D. Davis

Michigan Law Review

Plaintiff, a resident of Texas, brought action in a United States district court in Minnesota to recover damages under the Federal Employers' Liability Act for injuries received in an accident in Texas. Defendant, in accordance with section 1404(a) of the United States Judicial Code, moved for a change of venue to Texas for the convenience of parties and witnesses and in the interest of justice. Plaintiff resisted the transfer solely on the ground that the section did not apply where venue was granted under the F.E.L.A. Held, by a two judge district court, motion granted. Hayes v. Chicago, R.I. …

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Appeal And Error-Right Of Defendant To New Trial Where Plaintiff Is Entitled To All Or None And Verdict Is Intermediate, Bruce L. Moore S.Ed. Jun 1948

Appeal And Error-Right Of Defendant To New Trial Where Plaintiff Is Entitled To All Or None And Verdict Is Intermediate, Bruce L. Moore S.Ed.

Michigan Law Review

In an action on an express contrast, plaintiff sued for $1750, representing the agreed 5 per cent commission on the sale of real estate. Defendant denied the validity of the contract, and there was no issue as to the amount of liability if liability existed. The instruction to the jury was that plaintiff was entitled to 5 per cent commission if entitled to recover. The jury returned a verdict for $875, half the amount claimed. Defendant's motion for a new trial was denied. Held, although the verdict was unauthorized as to plaintiff, there was no error as to defendant …

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Federal Courts--Third-Party "Practice--Some Jurisdictional Problems Arising Under The Amended Federal Rules Of Civil Procedure, Effective March 19, 1948, Chester Lloyd Jones S.Ed. Jun 1948

Federal Courts--Third-Party "Practice--Some Jurisdictional Problems Arising Under The Amended Federal Rules Of Civil Procedure, Effective March 19, 1948, Chester Lloyd Jones S.Ed.

Michigan Law Review

Third-party practice as originally adopted by the Federal Rules of Civil Procedure was one of the bolder steps in the direction of integrated and complete litigation of all phases of a transaction. One of the principal problems that was forseen by the commentators and that has in fact developed in the cases is the jurisdictional limitation of the federal courts where no federal question is involved, and jurisdiction depends on diversity of citizenship or alienage. Rule 82 is explicit in stating that the Rules should be interpreted so as not to extend or limit the jurisdiction of the district courts. …

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Federal Courts-Rule 20 Of Federal Rules Of Criminal Procedure-Constitutionality, William B. Harvey May 1948

Federal Courts-Rule 20 Of Federal Rules Of Criminal Procedure-Constitutionality, William B. Harvey

Michigan Law Review

One of the few real innovations in the Federal Rules of Civil Procedure is incorporated in Rule 20 which provides that a defendant who is arrested in a district other than that in which the indictment has been returned may declare in writing his desire to plead guilty and waive trial in the district of the crime. In this event, with the approval of the United States Attornies for both districts, the clerk of the court to which the indictment was returned is authorized to forward the papers to the clerk of the court for the district in which the …

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Constitutional Law-Procedural Due Process Denied By Michigan's "One-Man Grand Jury'', Robert J. Nordstrom May 1948

Constitutional Law-Procedural Due Process Denied By Michigan's "One-Man Grand Jury'', Robert J. Nordstrom

Michigan Law Review

Petitioner was summoned to appear as a witness before one of Oakland County's judges who was then acting in the capacity of "one-man grand juror." This proceeding was attended only by petitioner, the judge grand juror, and two other circuit judges acting as advisers to the latter. The purpose was to investigate alleged misconduct on the part of law-enforcing officials through the acceptance of bribes in the form of sales of worthless "bonds" on pin-ball machines. Petitioner admitted purchasing these "bonds" but could. not recall just what he had done with them when they had expired. Concluding that the petitioner's …

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Discovery-Procurement Of An Order Requiring A Nonresident Plaintiff To Submit To An Oral Examination Within The State Before Trial, Ralph J. Isackson May 1948

Discovery-Procurement Of An Order Requiring A Nonresident Plaintiff To Submit To An Oral Examination Within The State Before Trial, Ralph J. Isackson

Michigan Law Review

Relator, a resident of Massachusetts, brought an action in Illinois against the Railway Express Company to recover damages for the negligent transportation of the relator's cattle. After the cause was at issue the Express Company's attorneys presented a motion to respondent, a superior court judge, requesting a court order directing the nonresident relator to appear before a notary public in Chicago for the purpose of an oral examination. The court granted the order, fixing a time and place for the taking of relator's deposition on oral interrogatories. Upon failure of the relator to appear, the court stayed proceedings for a …

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Practice And Procedure-Proceedings For Restoration Of Sanity -Who May Appeal From An Adjudication Of Sanity, Chester Lloyd Jones S.Ed. Mar 1948

Practice And Procedure-Proceedings For Restoration Of Sanity -Who May Appeal From An Adjudication Of Sanity, Chester Lloyd Jones S.Ed.

Michigan Law Review

In a proceeding commenced by a guardian ad litem in a probate court to determine whether an incompetent might be adjudged sane, the committee was made respondent and resisted the adjudication of sanity. From a judgment of competency, the committee appealed to the proper court of general jurisdiction. The applicable statutes specifically gave only the petitioner the right to appeal in proceedings for restoration of sanity, but another statute gave the right to appeal from probate to circuit courts to "any person interested in any . . . decree of any probate court, and considering himself injured thereby." Petitioner moved …

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Soviet Civil Law: Private Rights And Their Back-Ground Under The Soviet Regime Comparative Survey And Translation Of The Civil Code; Code Of Domestic Relations; Judiciary Act; Code Of Civil Procedure; Laws On Nationality, Corporations, Patents, Copyright, Collective Farms, Labor; And Other Related Laws. Volume 1., Vladimir Gsovski Jan 1948

Soviet Civil Law: Private Rights And Their Back-Ground Under The Soviet Regime Comparative Survey And Translation Of The Civil Code; Code Of Domestic Relations; Judiciary Act; Code Of Civil Procedure; Laws On Nationality, Corporations, Patents, Copyright, Collective Farms, Labor; And Other Related Laws. Volume 1., Vladimir Gsovski

Michigan Legal Studies Series

For centuries, jurisprudence has been built up and developed in terms of a more or less comparable body of concepts: family, private ownership, individual rights, and the State, the necessity of which was challenged in the original program in the name of which the soviet government assumed the reins of power. What then is the fate under the soviet regime of the legal concepts thus far operative in all civilized societies? This book seeks to offer material for the answer to questions of this nature. The principal aim of the author has been to inquire into the legal protection and …

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Injunctions-Power Of A Court To Modify A Final Permanent, Injunction, Charles B. Blackmar S.Ed. Dec 1947

Injunctions-Power Of A Court To Modify A Final Permanent, Injunction, Charles B. Blackmar S.Ed.

Michigan Law Review

A court which has issued a permanent injunction may, under certain conditions, open and modify or dissolve the injunction even though the decree in the original action has become final. This power is said to be justified by the continuing operation of the injunction, which regulates future conduct as well as determining the rights of the parties as of the date of rendition of the decree. The same proposition can be restated by saying that injunctions are issued to protect existing rights, but provide no immunity against modification of those rights because of later changes in the applicable law or …

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Federal Courts-Rules Of Civil Procedure-Construction Of Rule 50 (B), Daniel W. Reddin, Ii Dec 1947

Federal Courts-Rules Of Civil Procedure-Construction Of Rule 50 (B), Daniel W. Reddin, Ii

Michigan Law Review

This action was brought in a South Carolina state court and removed to the federal district court on grounds of diversity of citizenship. After the evidence of both parties had been presented, the court denied defendant's motion for a directed verdict. Thereafter, the jury returned a verdict for the plaintiff. Although defendant filed a motion for a new trial on grounds of newly discovered evidence which the court denied, he did not move to have the verdict and judgment set aside and to have judgment entered in his favor as he might have done under Rule 50 (b) of the …

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Abatement And Revival-Federal Courts-Abatement Of Action By Federal Official Unless Successor Substituted As Party Plaintiff Within Six Months, John M. Veale S.Ed. Nov 1947

Abatement And Revival-Federal Courts-Abatement Of Action By Federal Official Unless Successor Substituted As Party Plaintiff Within Six Months, John M. Veale S.Ed.

Michigan Law Review

The administrator of the Office of Price Administration began an action on behalf of the United States against the defendant to enforce certain penalties for the violation of the Emergency Price Control Act. While the action was pending the administrator was succeeded in office. Counsel for the government, however, failed to move to substitute his successor as a party plaintiff until more than six months thereafter. The defendant then moved to dismiss the action on the grounds that unless such substitution was made within the six months specified by section 780 of the Judicial Code and Rule 25(d), Federal Rules …

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Required Joinder Of Claims, William Wirt Blume May 1947

Required Joinder Of Claims, William Wirt Blume

Michigan Law Review

There are three principal reasons for requiring the joinder of claims: (1) To prevent the evils of a multiplicity of suits. (2) To eliminate the possibility of more than one recovery on one liability. (3) To make possible the ranking of claims and a pro rata distribution of property. In this paper the writer will undertake a brief survey of the common situations in which joinder of claims is or may be required, with the object of indicating the extent to which the practice is bottomed on the principle of preventing unnecessary suits.

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Federal Procedure-Impleader Under Rule I4-Lack Of Diversity Of Citizenship Between Original Plaintiff And Third-Party Defendant, Frank E. Roegge S.Ed. Mar 1947

Federal Procedure-Impleader Under Rule I4-Lack Of Diversity Of Citizenship Between Original Plaintiff And Third-Party Defendant, Frank E. Roegge S.Ed.

Michigan Law Review

Plaintiff, a citizen of Connecticut sued defendant, a citizen of Ohio, for injuries received when the car in which plaintiff was a passenger collided with a truck driven by defendant. Defendant removed the case from a Connecticut state court to a federal district court and then obtained an order citing plaintiff's husband, a citizen of Connecticut and the driver of the car in which plaintiff was riding, as a third-party defendant under Rule 14 of the Federal Rules of Civil Procedure. Defendant had no claim against the third party by Connecticut substantive law which does not recognize contribution between tort-feasors. …

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Federal Courts--Jury Selection--Exclusion Of Wage Earners, John R. Dykema Dec 1946

Federal Courts--Jury Selection--Exclusion Of Wage Earners, John R. Dykema

Michigan Law Review

In an action for personal injuries, removed to a federal court, petitioner, a salesman, demanded a jury trial. He moved to strike out the entire panel, alleging that "mostly business executives or those having the employer's viewpoint are purposely selected on said panel . . . [thus] discriminating against other occupations and classes." The evidence showed that the clerk of the court and the jury commissioner had as a matter of practice excluded from the jury list all persons working for a daily wage. They gave as their reason the fact that such persons, called for jury service, invariably requested …

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Administrative Law-Exhaustion Of Administrative Remedies As A Prerequisite To Judicial Review-Discretionary Treatment By Federal Courts, James E. Dunlap S.Ed. Jun 1946

Administrative Law-Exhaustion Of Administrative Remedies As A Prerequisite To Judicial Review-Discretionary Treatment By Federal Courts, James E. Dunlap S.Ed.

Michigan Law Review

The recent Supreme Court decision in Levers v. Anderson held that the rule that one must exhaust his administrative remedies before he is entitled to judicial review does not operate automatically so as to preclude judicial relief when such relief has been expressly permitted by statute. Stated in this way, it is difficult to see how one could reach a different conclusion. Nevertheless, it is believed that this decision, which resulted in a reversal of a circuit court's judgment, did much to remove certain confusion in this field.

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Legal Control Of Medical Practice: Validity And Methods, Kenneth C. Sears Apr 1946

Legal Control Of Medical Practice: Validity And Methods, Kenneth C. Sears

Michigan Law Review

Legislators have deemed it necessary, in order to protect the public interest, to exercise some control over the practice of the healing art by physicians, surgeons, chiropractors, osteopaths, dentists, etc., both as to who may practice and in what manner the practice may be carried on. Legislators have also required, in certain situations, that designated persons submit to medical treatment. Both types of regulation give rise to various legal and constitutional problems and it is the purpose of this paper to discuss some of these problems.

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