Civil Procedure Commons^™

Witnesses--When Interpreters May Be Used

Michigan Law Review

A novel situation in regard to the use of interpreters was presented in People v. Walker (Cal. App. 1924) 231 Pac. 572. The prosecution called a witness who was brought in in a crippled and weak condition. He was asked questions, but "the witness could give forth no sound, not even a whisper, by means of the organs of Speech." While the record was not clear whether there was any movement of his lips whatever, at least there was none which conveyed to any person but his wife the impression that he attempted to put forth articulate speech in response …

Arbitration Under The Modern Statutes

Michigan Law Review

Of late years the way of the "fair and free trial in open court," to which every man is deemed to have an inalienable right, has become so long, devious, intricate and costly, that the law faces the danger of falling into general disrepute. The calendars of courts in most jurisdictions ·are crowded and filled for months and years in advance. the situation being most acute in the larger cities and commercial centers. the very places where delays are most undesirable. New York City serves as a horrible example-here an ordinary case generally takes three years to come to trial. …

Constitutional Law-Jury Trial For Contempt-Constitutionality Of Clayton Act

Michigan Law Review

The defendants, striking employees of a railway company, were proceeded against in a federal district court for contempt in violating a preliminary injunction, and demanded a jury trial under the Clayton Act (c. 323, 38 STAT. 738, sec. 21, 22), which provides that in cases of wilful disobedience of "any lawful writ, process, order, rule, decree, or command of any District court of the United States or any court of the District of Columbia by doing any act or thing" forbidden, if such act or thing also constitutes a criminal offense under any statute of the United States or law …

Recent Important Decisions

Michigan Law Review

A collection of recent important court decisions.

Are All Permanent Injunctions Temporary?

Michigan Law Review

Injunctions may be classified with reference to the stage in the cause at which they are granted, viz. at a preliminary bearing, or at a final bearing, and they may be classified with reference to the time for which they are to stand, viz. for a limited period, or in perpetuity. For the first distinction we have a superfluity of terms. "Temporary," "provisional," "interlocutory," "ad interim" "pendente lite" indicate the first class: "permanent," "perpetual," "final," indicate the second class. But unfortunately several of these terms also suggest the character of the injunction with regard to …

Caveat Emptor And The Judicial Process, John B. Waite

Articles

"There are many issues in the law whose solution has an essentially economic cost. There is one issue in particular, however, of immense and most important economic effect, which has been decided and re-decided, but which, strangely enough, the courts never seem to have considered on the merits of its economic relations and effects....

"...[O]ught one to be permitted safely, if honestly, to intrust possession of goods to others; or should one have power safely, if honestly, to buy goods from those in possession...."

Trial Practice--Duty Of The Court To Instruct The Jury In The Absence Of A Request For Instructions

Michigan Law Review

A series of cases recently decided in Georgia brings to mind the interesting question as to whether the court is bound to give instructions upon the law of the case in the absence of a specific request therefor. See Slocumb v. State, 157 Ga. 131; Fort v. State, 121 S. E. 128; Hatfield v. State, 121 S. E. 129; Walker v. State, 121 S. E. 130; Bul­lard v. State, 121 S. E. 130; Coney v. State, 121 S. E. 132, and Riggs v. State (1924) 121 S. E. 142. In none of these cases …

The Federal Uniform Procedure Bill

Michigan Law Review

After eleven long years of reposing in the files of the judiciary committees, the Federal Procedure Bill (S. 2061), sponsored by the Committee on Uniform Judicial Procedure of the American Bar Association, has finally been favorably reported by the Judiciary Committee of the Senate, and the patron of the bill, Senator A. B. Cummins, will call it up for passage during the early days of the December session of Congress. For eleven long years opponents of the bill have succeeded in keeping it in committee files, and it is to be expected that the proponents of the measure will have …

To Contribute Or Not To Contribute?--A Basic Inconsistency In The Law Of Negligence

Michigan Law Review

X accepts an invitation to ride with his friend A, in the latter's coupe. B has a party of friends in his new limousine. Both drivers are careless; the cars collide; and X is injured. X brings suit against B, and the latter has A brought into court as a defendant, a proceeding permitted under the provisions of the Wisconsin code of civil procedure. B claims the right of contribution against A, in the event that X is successful in his suit, and also asks affirmative relief against A for the damage done to his limousine. A counters with a …

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 …

Recent Important Decisions

Michigan Law Review

A collection of recent important court decisions.

Error Without Prejudice

Michigan Law Review

An examination of almost any of our reports of decisions now current, will impress one with the great number of cases reported in which the courts discuss the matter of reversal for error as affected by the question of whether prejudice results from such error.

The Machinery Of Procedural Reform, Edson R. Sunderland

Michigan Law Review

Much has been said and written about the imperfections of legal procedure. It is a subject of great interest and concern to the bar and to the public. Since rules of practice prescribe the conditions under which rules of law may be made operative, in so far as they fail of their purpose the law itself becomes ineffective. Lord Campbell is reported to have said that "The due distribution of justice depends more upon the rules by which suits are conducted than on the perfection of the code by which rights are defined."

The Trial Brief, Edson R. Sunderland, Clifford W. Crandall

Book Chapters

From the chapter Introduction: "The object of the preceding chapters is to show the brief maker where to find the material for his brief, how to find it, and how to select out of the mass of material found that which will be suitable for his use.... The present purpose is to outline a course of investigation suitable to the preparation of a case for trial and to suggest methods of making the material collected during the search for authorities readily available." [p.417-418]

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."

Challenges To The Array

Michigan Law Review

Trial by jury demands impartial jurors as the indispensable basis for public confidence. And the first requisite for obtaining impartiality is indifference on the part of those who select the jury. This was fully recognized at the common law, and ever since the days when jurors ceased to be witnesses and became triers of facts, it was a good objection to the entire panel that the sheriff was not indifferent between the parties in the selection and summoning of the jury. Prejudice on the part of individual jurors could be met by challenges to the polls, but when favor lurked …

An Inquiry Concerning The Functions Of Procedure In Legal Education, Edson R. Sunderland

Michigan Law Review

Procedure has always been the bête noire of the law school teacher. No other subject has developed such divergent opinions or such endless debates. None recurs with such periodic frequency and in no field of legal pedagogy has discussion seemed so barren of results. Three different general sessions of the Association of American Law Schools during the last ten years have been devoted largely or wholly to the subject of teaching procedure, and yet no substantial progress seems to have been made toward a standardized scheme of treatment. Individual teachers and schools have their individual views and policies, and they …

An Inquiry Concerning The Functions Of Procedure In Legal Education, Edson R. Sunderland

Articles

Procedure has always been the bete noire of the law school teacher. No other subject has developed such divergent opinions or such endless debates. None recurs with such periodic frequency and in no field of legal pedagogy has discussion seemed so barren of results. Three different general sessions of the Association of American Law Schools during the last ten years have been devoted largely or wholly to the subject of teaching procedure, and yet no substantial progress seems to have been made toward a standardized scheme of treatment. Individual teachers and schools have their individual views and policies, and they …

An Inquiry Concerning The Functions Of Procedure In Legal Education, Edson R. Sunderland

Other Publications

Procedure has always been the bete noire of the law school teacher. No other subject has developed such divergent opinions or such endless debates. None recurs with such periodic frequency and in no field of legal pedagogy has discussion seemed so barren of results. Three different general sessions of the Association of American Law Schools during the last ten years have been devoted largely or wholly to the subject of teaching procedure, and yet no substantial progress seems to have been made toward a standardized scheme of treatment. Individual teachers and schools have their individual views and policies, and they …

Cause, Legal Cause And Proximate Cause. Ii, Albert Levitt

Michigan Law Review

The problem connected with finding a passive situation to be a proximate cause is very different from that connected with finding an active force as a proximate cause. The reason for this difference is that the situation does nothing actively. It simply exists. Before it can contribute to an injury a force must be ejected from it or else the injured party must be brought, or bring himself, into contact with it. The situation never does; it just is. It is never an aggressor. Its contribution to any given injury is a passive contribution. The situation is usually created …

Book Reviews, Edwin W. Patterson, Edson R. Sunderland, C E. Griffin

Michigan Law Review

The title of this brilliant little volume might, more accurately, have been, "The Spirits of the Common Law," for it depicts the common law as the battleground of many conflicting spirits, from which a few relatively permanent ideas and ideals have emerged triumphant. As a whole, the book is a pluralistic-idealistic interpretation of legal history. Idealistic, because Dean Pound finds that the fundamentals of the 'common law have been shaped by ideas and ideals rather than by economic determinism or class struggle; he definitely rejects a purely economic interpretation of legal history, although he demands a sociological one (pp. io-ii). …

Recent Important Decisions, Michigan Law Review

Michigan Law Review

Admiralty - Workmen's Compensation - Is a Hydroplane a Vessel? - Claimant was employed in the care and management of a hydroplane which was moored in navigable waters. The hydroplane began to drag anchor and drift toward the beach, where it was in danger of being wrecked. Claimant waded into the water and was struck by the propeller. Held, claimant is not entitled to compensation under the Workmen's Compensation Law, since a hydroplane while on navigable waters is a vessel, and therefore the jurisdiction of the admiralty excludes that of the State Industrial Commission. Reinhardt v. Newport Flying Service Corp. …

Service As A Requirement Of Due Process In Actions In Personam, Charles Kellogg Burdick

Michigan Law Review

A prime requisite of due process is, of course, that the court shall have jurisdiction of the subject-matter. "To give such proceedings any validity, there must be a tribunal competent by its constitution-that is, by the law of its creation-to pass upon the subject-matter of the suit."' In proceedings in personam-proceedings to determine the personal liability of the defendant, no property being brought by the proceedings within the control of the court-the court must also have jurisdiction of the defendant. Attempts have repeatedly been made to take jurisdiction of nonresident defendants through service by publication or through personal service made …

Review Of Fundamentals Of Procedure In Actions At Law, By A. W. Scott, Edson R. Sunderland

Reviews

Professor Sunderland writes: "A comprehensive and critical study of those essential principles which serve as the groundwork of the system of procedure employed in actions at law has been a great desideratum in America for a hundred years .... The title of Professor Scott's book raises the hope that at last a scholarly, analytical study of this elusive, complex and immensely important field has made its appearance. But the title is misleading ..."

Documents And Their Scientific Examination, Victor H. Lane

Reviews

Professor Lane's short review of a "little work" that touches on "the composition and behavior of inks, pencil pigments, sealing wax, and other writing materials in connection with their use upon documents." Lane feels that "A study such as this is of material importance in presenting expert evidence in civil and criminal cases..."

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 …

Bringing Third Parties Into Actions At Law—Set-Off Against The Assignor, Edson R. Sunderland

Articles

It frequently happens, in an action by an assignee, that the defendant wishes to use as a cross-action a claim against the assignor. This results in no diffiulty unless the amount of the set-off against the assignor is greater than the claim of the plaintiff, or unless the cross-action calls for a specific remedy against the assigner in addition to its defensive effect upon the plaintiff's demand. In each of these cases we have a three-sided controversy. In the first, the set-off operates against the plaintiff to the extent of his claim and against the assignor for the balance. In …

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 …