Civil Procedure Commons^™

Actions-Single Injury To Person And Property As One Cause Of Action

Michigan Law Review

The plaintiff suffered personal injuries and damage to his truck when the truck which he was driving collided with an automobile driven by the defendant's intestate, the latter being killed instantly by the collision. The plaintiff then brought this action alleging that the collision was caused by the intestate's negligence and asking damages for both personal and property injuries. The defendant contended that since his intestate was killed by the very blow which caused damage to the plaintiff no action lay against the intestate in his lifetime and since there was no statute giving an action against his administrator, the …

Federal Practice - Mandamus -Power Of Supreme Court To Issue

Michigan Law Review

An indictment having been returned against one Wingert, the district court refused to issue a bench warrant for his arrest. The United States petitioned the United States Supreme Court for a writ of mandamus. Held that without considering the right of the government to a direct review in certain cases adverse to it, and though the immediate appellate power is in the circuit court of appeals, the Supreme Court has power to issue the writ of mandamus on the ground that ultimate power to review by certiorari to the circuit court of appeals exists. Ex Parte United States, 53 …

Equity-Intervention

Michigan Law Review

A Kansas statute forbids the operation of theatres on Sunday. Appellee obtained an interlocutory injunction restraining "the Attorney General of the State of Kansas, and his subordinates . . . and every other person acting or attempting to act for said defendants" from enforcing the statute. Following this temporary injunction the appellee continued to operate his theatres on Sunday, and when the municipal authorities of Winfield and Eldorado threatened to enforce municipal ordinances prohibiting Sunday shows, the appellee served them with copies of the preliminary order against the attorney general, and warned them that contempt proceedings would be instituted if …

Practice And Procedure -Appeal And Error-Duplicitous Appeal

Michigan Law Review

Appellant attempted in one appeal and with a single notice of appeal to have reviewed two separate and disconnected appealable orders of the lower court made prior to final judgment, namely, an order granting a temporary injunction and an order overruling a demurrer to the complaint. Respondent moved to dismiss the appeal. Held, the appeal was duplicitous and therefore must be dismissed without leave to amend because the time for appeal was past. Grieves v. Danaher, (S. D. 1932) 243 N. W. 916.

Pleading-Election Between Express Contract And Quantum Meruit

Michigan Law Review

The plaintiff's complaint was twofold. It first set forth an express, written building-contract. The second "cause of action" was based on the quantum meruit theory and alleged what the plaintiff's services were reasonably worth. In his answer the defendant set up a counterclaim for damages due to the plaintiff's delay and faulty construction. During the trial the court, on motion of the defendant, required the plaintiff to elect on which of the two counts it would stand. The plaintiff elected the express contract. From a judgment in its favor for a fraction of the damages demanded, the plaintiff appealed. Held …

Practice And Procedure -The Effect Of Plaintiff's Pleading On The Doctrine Of Res Ipsa Loquitur

Michigan Law Review

The doctrine of res ipsa loquitur, originating as an exception to the requirement that the plaintiff must prove the particular acts of negligence causing his injury, is applied at the discretion of the trial judge in cases where the acts of negligence are unknown to plaintiff or proof of them is not available to him. Since the doctrine permits of an inference of negligence from the circumstances of the case, these circumstances must be such as will warrant the inference, and various rules have been evolved to determine this.

Practice And Procedure-Special Appearance-Waiver Of Objections To Service Of Process

Michigan Law Review

The plaintiff brought suit in a South Dakota court against residents of Nebraska. The defendants, in what they designated as a special appearance, objected to the jurisdiction of the court both over their persons and over the subject-matter. The trial court held that by objecting to the jurisdiction over the subject-matter, the defendants waived the right to attack the jurisdiction over their persons and so had made a general appearance. The defendants elected to stand upon their jurisdictional pleas. A default judgment was entered against them and from that judgment they appealed. Held, that an appearance objecting to the …

Equity - Contempt - Enforcement Of Decree To Pay Money

Michigan Law Review

The defendant became the beneficiary in a life insurance policy by undue influence. The court decree ordered her to pay the proceeds, most of which she had spent, to the plaintiff, the original beneficiary. Upon commitment for contempt in disobedience of the decree the defendant brought habeas corpus. Held, that attachment for contempt for non-compliance with an order to pay money lies only when payment is unenforceable by execution. Since defendant had available his remedy of execution, contempt proceedings were unjustifiable. Klimek v. Borkowski, 259 Mich. 383,243 N. W. 313 (1932).

Practice And Procedure - Conditional Judgments At Law - Validity And Advantages

Michigan Law Review

Some modern courts have asserted and many lawyers have assumed that in common law actions a court can not render a judgment conditional in form. It is argued that the court is without jurisdiction so to decide a case, and that in any event the common law has never recognized such a form of judgment as valid. The first point is not so difficult to disprove, and the second, so far as actual decision is concerned, is clearly incorrect." In several early cases common law courts were willing not only to stay execution of judgments until conditions were performed, but …

Practice And Procedure - Declaratory Judgments In The Federal Courts

Michigan Law Review

The declaratory judgment by that name is comparatively new in legal procedure in this country. But it is in reality simply an extension of an old process. The power to declare the rights of the parties is inherent in courts of equity and has been exercised since ancient times in action to quiet title, to declare marriages valid or void, to annul divorces, to declare legitimacy or illegitimacy or determine heirship, to construe wills and trusts, and in other actions. A suit for a declaratory judgment in no wise differs from other suits save in the single respect of the …

Appeal And Error - Application For Separate Trials - Nature Of Order Denying

Michigan Law Review

The decedent was riding with his brother as a guest when a collision with another automobile caused his death. The executrix of his estate sued his brother and the driver of the other car jointly. The defendants were suable jointly for their concurring negligences but a statute authorized the court in its discretion to allow separate trials. Upon an appeal from an order overruling an application by the defendants for separate trials the court held that it was an "intermediate order involving the merits or materially affecting the final decision" and thus directly appealable. Manley v. Paysen, (Iowa 1932) …

Equity - Supplemental Decrees

Michigan Law Review

Appellant sold a trade name to the appellee which the latter was to use on "crayons, pastels, oil and water color paints, pens and erasers." Appellee used the name on other commodities and the appellant obtained an injunction forbidding the use of the name on any articles not mentioned in the contract. A year later, and in another term of court, the appellant moved for a supplemental decree, representing that the appellee was violating the spirit of the injunction by drafting advertising so that through association of the commodities upon which the name could be used with those upon which …

Federal Practice -- Appeal And Error -- Non-Joinder Of Plaintiffs In Error

Michigan Law Review

Judgment was rendered by the trial court against appellant and another, and upon appeal to the Supreme Court of Mississippi, judgment was affirmed against the appellant and also given against the surety on the appeal bond. Appellant alone appealed to the Supreme Court of the United States. Held, that all the parties against whom a joint judgment has been rendered must join in an appeal and no amendment is allowable after the period for appeal has expired. Hartford Accident & Indemnity Company v. Bunn, 285 U. S. 169, 52 Sup. Ct. 354, 76 L. ed. 456 (1932).

Practice And Procedure - Declaratory Judgment

Michigan Law Review

Plaintiff brought an action under the Uniform Declaratory Judgments Act to be adjudged the lawful child of J. C., deceased. A demurrer upon the grounds that no cause of action was stated and that the court lacked jurisdiction of the subject matter was sustained. On appeal, held, error. The question of status can be determined under the Act independent of any controversy relating to other rights. Miller v. Currie, (Wis. 1932) 242 N. W. 570.

Torts - Malicious Prosecution - Termination Of Previous Proceeding In Favor Of Plaintiff

Michigan Law Review

Plaintiff gave a note with power of attorney to confess judgment, to X who assigned to defendant. Plaintiff paid the note before maturity. On maturity, defendant got a judgment by confession and levied on plaintiff's property. Thereupon plaintiff asked the court to set aside the judgment, and a hearing was granted for the purpose, but the evidence showed that instead of proceeding to a hearing the parties agreed that defendant should mark the judgment satisfied. This was done. Plaintiff later sued for malicious prosecution. Held, that since the prior suit did not terminate in his favor plaintiff could not …

Practice And Procedure - Substituted Service Of Process

Michigan Law Review

A statute provided for substituted service of process on a defendant "by leaving a copy thereof at his usual place of residence with some member of his family over fourteen years of age." Held, a maid with no definite term of employment is not a member of the family upon whom substituted service may be made under the provisions of the statute. Thompson v. Butler, (Iowa 1932) 243 N. W. 164.

The Right To Comment On The Failure Of The Defendant To Testify, Andrew A. Bruce

Michigan Law Review

In 1931 the American Law Institute adopted a resolution to the effect that "The judge, the prosecuting attorney and counsel for the defense may comment upon the fact that the defendant did not testify."

In the same year the American Bar Association resolved: "That by law it should be permitted to the prosecution to comment to the jury on the fact that a defendant did not take the stand as a witness; and to the jury to draw the reasonable inferences."

Torts - Due Care By Rescuer

Michigan Law Review

Plaintiff, a woman about sixty years of age, described as "considerably overweight for her size and age," and her companion were swimming in a club pool. The companion went beyond her depth, called for help, and plaintiff went to her rescue. The lifeguard, believing plaintiff to be in difficulty, went to her rescue and, in pulling her over the bank of the pool, injured her arm, side, and back. From an award in favor of the plaintiff for $7,500, defendant, the lifeguard's employer, appealed. Held, the lifeguard owed the patron the duty of exercising ordinary care; judgment for plaintiff …

Torts-Malicious Prosecution-Advice Of Counsel

Michigan Law Review

Defendant, a practicing lawyer, lodged a complaint charging plaintiff with larceny. A criminal warrant was issued; plaintiff was arrested, but the action was dismissed when the complaining witness failed to appear at the trial. Plaintiff then brought this action for malicious prosecution. One of the grounds of defense pleaded was that which is commonly called "advice of counsel," defendant pleading that, in his judgment, the plaintiff was guilty as charged. Held, in Mawhinney v. Morrissey, that, under the facts of this case, the defense fails because the attorney-defendant was not a disinterested party.

Pleading-How To Raise The Issue Of Payment

Michigan Law Review

On rehearing in an action on contract for money two questions were presented to the court, to wit: first, is an allegation of non-payment essential in order that this complaint might state a cause of action; and second, can the issue of payment be raised by the defendant's general denial? Held, in Hughes v. Wachter an allegation of non-payment is necessary in the complaint, and the defendant may prove payment under a general denial.

Federal Injunction Against Proceedings In State Courts: The Life History Of A Statute, Edgar Noble Durfee, Robert L. Sloss

Michigan Law Review

The Judicial Code provides, in section 265, that "the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State," except where authorized by the Bankruptcy Act. This provision, minus the bankruptcy exception, first appeared in an act of 1793, amending the Judiciary Act of 1789. We know next to nothing of the parliamentary history of this statute. We do, however, know that the basic political issue in the framing of the Constitution was that of states' rights, the question how far the new government should be a …

Federal Practice - Power Of United States Supreme Court To Entertain Writ Of Certiorari Where Appeal Has Been Erroneously Taken

Michigan Law Review

Judgment for the plaintiff in a law action was affirmed by the circuit court of appeals, first circuit, and defendant appealed to the Supreme Court of the United States and at the same time petitioned for a writ of certiorari. The appeal was dismissed for want of jurisdiction, and appellee contended that the petition for certiorari could not be entertained under par. (b) of sec. 240, Judicial Code, as amended by Act of February 13, 1925 (c. 229, 43 Stat. 936, 938, 939; U.S. C. A. tit. 28, sec. 347). Held, that the writ of certiorari could be granted, …

Federal Practise-Review Of Facts-Instance Of When Verdict Must Be Directed

Michigan Law Review

This was a case in which a motion for a directed verdict was denied by the trial court on the ground that there was sufficient evidence to justify a submission of the case to the jury. The circuit court of appeals affirmed this, but on appeal to the Supreme Court it was held error. Southern Ry. Co. v. Walters (U.S. 1931) 52 Sup. Ct. 58.

Patents - Right To Personal Service In Contempt Proceedings

Michigan Law Review

Complainant obtained in the district court of Massachusetts a final injunction against the manufacture and sale of a device by defendant, a Michigan corporation. In a subsequent term of court, complainant brought contempt proceedings for an alleged violation of the injunction. Copies of the petition, motion, and order to show cause were sent by registered mail to the defendant's place of business. Objection to the jurisdiction of the court was raised upon the ground that the term in which the injunction had issued had expired and the decree, as to compensation, had been satisfied; hence personal service as in a …

Constitutional Law-Compelling Witness Duty From Absent Nationals

Michigan Law Review

In proceedings taken under the so-called Walsh Act the petitioner, Blackmer, a United States citizen residing in France, was found guilty of contempt for failure to respond to subpoenas issued out of a federal court and served on him in France by a United States consul requiring him to appear as a witness in that court. See 30 MICH. L. REV. 137 (1931) for a more detailed statement of the facts. By a unanimous decision (Mr. Justice Roberts not participating) the United States Supreme Court recently held that the contempt decree be affirmed, thus sustaining the constitutionality of the Walsh …

Trial Practice - Questioning On Voir Dire As To Relation To Insurance Company

Michigan Law Review

Plaintiff's counsel was permitted, over the objection of defendant's counsel, to ask on voir dire examination whether the jurors or the members of their families were stockholders in any insurance company. Held, proper under the circumstances, there being no showing of want of good faith, or persistent course or effort to impress on the jury that the defendant's liability was insured. Raines v. Wilson (Iowa, 1931) 239 N. W. 36.

Civil Pleading In Scotland, Robert Wyness Millar

Michigan Law Review

It might be expected that, after the lodging of the answers and pleas in law on the part of the defender, a brief period would now be allowed the pursuer to put in a reply to any affirmative allegations contained in the defender's pleading. But this is not the case, at least in the sense of his lodging a separate pleading. He is given opportunity to reply, but by way of revising his condescendence. Basically, the principle is the same as that obtaining in our classic chancery practice, whereby the complainant amended his bill in order to include any special …

Federal Practice - Statute Of Limitations - An Amendment As Stating A New Cause Of Action

Michigan Law Review

Plaintiff brought his action to recover taxes paid under protest September 21, 1920. The tax was levied under the Revenue Act of 1918 on certain whiskey belonging to the plaintiff and stored in a government warehouse, which it was claimed had been withdrawn for beverage purposes. In his first petition, filed July 26, 1924, the plaintiff alleged that no tax was due because the liquor, while in exclusive control of the government and without fault of the plaintiff, was destroyed by fire. Two amended petitions were filed, one on February 28, 1927, and the other on September 22, 1928, in …

Torts - Negligence - Recent Acquisition Of Driver's License

Michigan Law Review

In a suit for damages for injuries allegedly negligently inflicted upon the occupant of an automobile, plaintiff testified that defendant was driving at a high rate of speed when his car began to zigzag and finally overturned, injuring plaintiff. Defendant testified that he was driving moderately when, upon their sudden application, the brakes locked, causing the car to zigzag and overturn. There was evidence to the effect that "defendant was an inexperienced driver, having just obtained his driver's license." Defendant's motions for a nonsuit and a directed verdict were refused. Held, that the question of defendant's negligence was for …

Civil Pleading In Scotland, Robert Wyness Millar

Michigan Law Review

Said Lord Chancellor Loreburn, in his answers to the questions addressed to him by Mr. Justice Lurton, preparatory to the drafting of the Federal Equity Rules of 1912: "It may be worth while for Mr. Justice Lurton and his coadjutors to consider the Scottish method of pleading which, in my opinion, is the best." This can only mean that the Lord Chancellor regarded the method in question as superior to that obtaining under the English Rules - certainly a high testimonial coming from such a quarter. Whether the opinion is justified or not is a question which may be left …