Courts Commons^™

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 …

Trial Procedure-Note Taking By Jurors-Misconduct Of Court In Instructing Jury To Take Notes Over Objections Of Litigants, Craig E. Davids S.Ed.

Michigan Law Review

Plaintiff suffered injuries by stepping into a hole on the sidewalk of defendant city. After a jury had been impaneled and sworn in the trial of the cause, the court, without the request of either litigant and over their objections, suggested to the jurors that they might take notes on the evidence presented, furnishing them with the necessary materials and instructing them as to how they should be kept during the progress of the trial. The trial court awarded judgment for defendant. The court of appeals, however, reversed the decision of the lower court and granted a new trial, holding …

Abstracts, Mary Jane Plumer

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Civil Justice In Germany, Burke Shartel, Hans Julius Wolff

Michigan Law Review

Our aim in preparing this paper is to develop for American lawyers a picture of the functioning of German civil justice. This aim, as well as the paper itself, is an outgrowth of a series of lectures on the German legal system delivered by the authors as background in the law of military occupation for the Judge Advocate General's School of the United States Army in Ann Arbor. That part of these lectures which concerns the operation of German civil justice seems to us of sufficient intrinsic interest to warrant publication.

The Scope Of A Civil Action, William Wirt Blume

Michigan Law Review

In the last fifty years the rules which deal with what Professor Millar happily has called "The Compass of the Cause" have shown "conspicuous advance." This advance is clearly reflected in the Rules of Civil Procedure of the District Courts of the United States, effective in 1938. It is the purpose of this paper, first, to present a complete analysis of the concept: scope of a civil action; second, to show the weaknesses of the codes in dealing with this concept; and, third, to indicate to what extent these, weaknesses have been remedied by the new …

Contempt By Publication In West Virginia, G. W. E.

West Virginia Law Review

No abstract provided.

Federal Courts - Federal Rules Of Civil Procedure - Statutes Of Limitations - Commencement Of Action, Harry M. Nayer

Michigan Law Review

Plaintiff brought suit on some promissory notes in the federal district court in Michigan. The complaint was filed before the expiration of the six-year Michigan statute of limitations, but although the plaintiff used due diligence he was unable to get personal service on defendant until the statutory period had elapsed. Defendant pleaded the statute of limitations. Both the Michigan and the federal procedures provide that "a civil action is commenced by filing a complaint with the court." Held, that the filing of the complaint tolled the running of the statute and the plaintiff should therefore be allowed to maintain …

Parties - Right To Sue Defendant By Fictitious Name, Oliver B. Crager

Michigan Law Review

Plaintiff brought an action of detinue to repossess an electric refrigerator against "John Doe, whose name is to the plaintiff otherwise unknown, but will be inserted by way of amendment when ascertained," in accordance with an Alabama statute allowing suits to be started against defendants by a fictitious name. Writ of seizure issued on the same date as the summons, but the sheriff did not make service. When it was found that the refrigerator was in the possession of a woman, plaintiff amended the complaint to substitute "Mary Roe, whose name is to the plaintiff otherwise unknown, etc." Service was …

Restitution - Effect Of Illegality - Right Of Person Not A Party To The Illegal Transaction To Invoke Defense Of Illegality, Alfred I. Rothman

Michigan Law Review

In an action for conversion of stock, plaintiff alleged that her intestate was the actual owner of the capital stock of a brewing corporation. Intestate had in fact furnished the consideration for the stock, but it was issued in the name of one Vogel as his dummy and agent. After the death of intestate, the defendant, with knowledge of plaintiff's interest, acquired the stock from Vogel by means of a pretended purchase and converted it to his own use. As a defense to the conversion action, defendant interposed a plea of illegality, alleging that the capital stock was issued to …

Recent Developments In Local Procedure, Leo Carlin

West Virginia Law Review

The Supreme Court of Appeals of this state, in three recent eases, two at law and one in equity, has prescribed or suggested what many West Virginia practitioners may consider innovations affecting three very ordinary matters of practice in this jurisdiction. Two of these cases, dealing, respectively, with the manner in which failure of consideration may be asserted as a defense and the necessity of process upon a cross-bill answer, are actual adjudications. One, indicating certain circumstances under which it is deemed the Statute of Frauds should be pleaded specially, contains only dicta so far as that particular question is …

Federal Courts - Federal Rules Of Civil Procedure - Rule 12(E) - Motion For Bill Of Particulars, Oliver B. Crager

Michigan Law Review

The United States brought an action against defendants, movie distributors and producers, for alleged conspiracies and monopolies in violation of the Sherman Anti-Trust Act. Defendants moved for a more definite statement or a bill of particulars under federal rule 12 (e). Held, bill of particulars allowed as to demands seeking ultimate facts, denied as to demands seeking evidentiary matter. United States v. Schine Chain Theatres, (D. C. N. Y. 1940) 1 F. R. D. 205.

Regulating Procedure By Rules Of Court In West Virginia, Harry Scherr Jr.

West Virginia Law Review

No abstract provided.

Contempt--Power Of Chancery To Punish, W. H. S.

West Virginia Law Review

No abstract provided.

Appeal And Error - Order Granting A New Trial As An Appealable Order, Michigan Law Review

Michigan Law Review

By an Ohio statute a final order might be reversed, vacated, or modified on appeal. After verdict was returned plaintiff filed a motion for a new trial claiming misconduct on the part of the jury. The trial court granted the motion and the defendant appealed. Held, the granting of a motion for a new trial is not a final order and, therefore, not subject to review, except in cases where it clearly appears from the record that the trial court has abused its discretion in granting the motion. Petro v. Donner, 137 Ohio St. 168, 28 N. E. …

Federal Courts - Rules Of Federal Procedure - Production Of Designated Documents And Things Under Rule 34, William C. Wetherbee Jr.

Michigan Law Review

Plaintiff sued for damages and loss of profits caused by the unlawful acts of the defendant beginning in January, 1937. Under rule 34 of the new federal rules the defendant moved that the court order the plaintiff to produce its books showing the company's commercial results for the period prior to January 1, 1936; its duplicate federal income tax returns for the years 1934 to 1938; and all copies of statements furnished to any bank or credit company over a period of some five years. Held, motion granted in regard to books of account and duplicate income tax returns …

Appeal And Error - Harmless And Prejudicial Error, Michigan Law Review

Michigan Law Review

In the trial of defendant for embezzlement, the prosecutor's opening address to the jury included a hearsay statement, regarding a tacit admission by defendant, tending to establish his guilt. Subsequently in the trial such hearsay statement was not allowed in evidence and the defendant now claims on appeal from conviction that the opening statement was prejudicial and thus he is entitled to a new trial. Held, that the statute governing reversals by an appellate court for prejudicial errors did not apply; and that a new trial follows as a matter of course because of a deprivation of the constitutional …

Parties - Representative Suits - Is Represented Person A Party?, Michigan Law Review

Michigan Law Review

The petitioner was a member of the class against whom a decree was rendered in a class suit. The petitioner was not named as a party and had no actual notice of the proceedings although notice was published according to court rules. After the time for appeal had expired, petitioner filed a petition to reopen the decree, under the terms of a statute which gave this right to any defendant against whom a court had rendered a decree without personal service. The petition was dismissed and the petitioner appealed. Held, order affirmed because the petitioner was not a party …

Practice And Procedure - General Verdict On Several Counts - Is New Trial Necessary When One Of Two Counts Is Unsupported By Evidence?, Edmund R. Blaske

Michigan Law Review

Plaintiff sued defendant to recover damages arising from personal injuries claimed to have been suffered by him while in the employ of defendant, who was not under the workmen's compensation statute. In the first count of his declaration plaintiff claimed that defendant did not furnish him a safe place in which to work, and in the second count that defendant set him at work on dangerous materials. The jury returned a verdict of "guilty on both counts" and assessed "total damages" at $998.71. The trial court, on a motion for judgment notwithstanding the verdict, ruled that as a matter of …

Federal Courts - Substance And Procedure - Effect Of Erie Railroad V. Tompkins And Rule 8 (C) Of The Federal Rules Of Civil Procedure Upon Burden Of Proof Of Contributory Negligence, John H. Uhl

Michigan Law Review

The case of Erie Railroad v. Tompkins has wrought a great change in the relationship between the state and federal courts. Prior to its decision, the federal courts under the rule of Swift v. Tyson did not have to apply the state non-statutory law. They could apply their own notions as to what the law was in matters of general law relating to substance. The Conformity Act compelled the federal courts to follow the practice, pleading, and forms and modes of proceeding in like causes in the courts of the state within which the federal district courts were held. In …

Rules For Civil Procedure In The United States District Courts: Appellate Procedure, Burke G. Slaymaker

Indiana Law Journal

No abstract provided.

Rules For Civil Procedure In The United States District Courts: Pre-Trial Procedure, Albert H. Cole

Indiana Law Journal

No abstract provided.

Rules For Civil Procedure In The United States District Courts: Trial Procedure, Arthur L. Gilliom

Indiana Law Journal

No abstract provided.

Jurors - Disqualification For Relationship To Parties - Who Are Parties, James H. Kilbourne

Michigan Law Review

Defendant was convicted of grand larceny. His motion for a new trial on the ground that one of the jurors was disqualified for implied bias because she was the mother of a deputy prosecuting attorney of the county was denied. Defendant appealed. Held, there was no error in denying the motion, for the juror was not disqualified. State v. Peterson, 190 Wash. 668, 70 P. (2d) 306 (1937).

The New Federal Rules And Indiana Procedure (Part Ii), Bernard C. Gavit

Indiana Law Journal

No abstract provided.

The Mind Of The Juror, Stephen Ailes

West Virginia Law Review

No abstract provided.

Jury - False Or Misleading Answers On Voir Dire As Grounds For A New Trial, James H. Kilbourne

Michigan Law Review

Defendant, a striking employee, was convicted of breach of the peace arising out of an assault on non-striking employees. Immediately preceding his trial the jurors had been interrogated on voir dire in a similar case. Counsel for defendant stated he would rely in part on that examination. In it the jurors had been asked whether they had either friends or relatives working at the strike-bound plant. Juror A failed to disclose that his brother was a non-striking employee, though he admitted his niece was. Juror B failed to disclose that a friend who had previously lived with him for a …

Equity - Contempt - Duration Of Imprisonment, Michigan Law Review

Michigan Law Review

Defendant, a trustee, refused to comply with a court order to turn over certain property to a receiver appointed by the court. She also refused to answer proper questions in a proceeding before a master. She was committed for contempt on January 5, 1934, to be held in jail till she complied with the court order and answered the questions. Her petition for release in July, 1937, was denied. Held, petition properly denied. Tegtmeyer v. Tegtmeyer, (Ill. App. 1937) 11 N. E. (2d) 657.

Federal Courts - Procedure For Determining Jurisdiction Ab Facto - Burden Of Pleading And Proof, Richard B. Maxwell

Michigan Law Review

Since the beginning of our government it has been recognized that the federal courts are courts of limited jurisdiction. At an early date it was decided that because of this the plaintiff must state in his complaint the facts upon which the jurisdiction depended. The reason given in support of this rule, which is still the unquestioned law, is that there is no presumption of jurisdiction in courts which have only limited jurisdiction, but it is presumed not to exist unless its existence be shown upon the record. When the plaintiff sustained his burden of pleading the jurisdictional facts, his …

Judgments - Default Judgments Rendered Without Jurisdiction - Validating Effect Of A Subsequent General Appearance, Richard B. Maxwell

Michigan Law Review

The effect of a general appearance by the defendant following a default judgment rendered without jurisdiction over the person of the defendant has been again raised by the recent Wisconsin case of Schwantz v. Morris. In this case the original judgment was invalid for lack of jurisdiction over the defendants, but the Supreme Court of Wisconsin held, that by joining non-jurisdictional grounds with jurisdictional grounds in a motion to set the judgment aside, the defendants had waived any defects in or objections to the jurisdiction of the court and that this waiver related back to the time of the …

The Doctrine Of Stare Decisis In British Courts Of Last Resort, John A. Fairlie

Michigan Law Review

The House of Lords and the Judicial Committee of the Privy Council are both British courts of last resort. The House of Lords is the final court for the United Kingdom and reviews cases from the English Court of Appeals and equivalent courts of Scotland and Northern Ireland; the Judicial Committee hears appeals of cases from the colonies and dominions and ecclesiastical cases.

Readers of Professor Gray's lectures on The Nature and Sources of the Law are aware of the distinction he notes between the attitude of the British House of Lords, on the one hand, and the Judicial Committee …