Litigation Commons^™

Some Reflections On The Trial Of A Lawsuit, Thomas F. Murphy

Washington Law Review

I didn't know when I received your invitation what subject would be most interesting to talk about. I have come to the conclusion that I will talk to you about my experiences in the trial of a law suit, and I ask you to measure that experience by the short time that I have been a lawyer. Because what I propose to do is not to speak to you, say from Mount Olympus, but to speak as I may as a friend, among friends, and then perhaps, if we have time, to open the floor to any questions you care …

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of $7000, to foreclose a chattel mortgage, and to enjoin a local bank from permitting the accounts of the debtor to be withdrawn.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 …

Suits Against Labor Organizations Under Section 301 Of The Labor Management Relations Act, Charles F. Bagley, Jr.

Washington and Lee Law Review

No abstract provided.

The Preparation And Trial Of A Lawsuit, John J. Kennett

Washington Law Review

It is at once obvious that the subject matter encompassed by the above title is so vast that the most that can possibly be done here is to make a few suggestions that may prove helpful to the younger and more inexperienced members of the bar. It is with that thought in mind, and with a profound sense of inadequacy, that I offer the following suggestions. It likewise should be noted that many of the suggestions here made were, in the first instance, the brain children of others—I have simply adopted these brain children who were given birth by older, …

Constitutional Law-Eminent Domain-Government Seizure Of Business Property To Avert Strike As A "Taking" Under Fifth Amendment-Amount Of Wage Increase As Measure Of "Just Compensation", John F. Spindler

Michigan Law Review

In 1943, in an attempt to end a strike of the United Mine Workers which threatened the national war effort, the Government, acting under an executive order directing the Secretary of the Interior to take possession of the mines where necessary, seized most of the nation's coal mines. Although mine officials were required to agree to conduct operations as agents of the Government, to keep separate books for the period of government operation, to fly the American Flag over the mines, and to post notices that the mines were "United States Property," they were instructed to carry on the mining …

Civil Procedure-Abatement-Status Of Suit Nominally Against Government Official When Official Leaves Office, Alan C. Boyd S.Ed.

Michigan Law Review

Often an action brought against an official of the sovereign is actually against the sovereign itself, nominally represented by the official. The status of such a suit when the official leaves office is even today not satisfactorily settled. The so-called representative suit, while at one time serving a purpose, has always been somewhat anomalous and today is antiquated and useless.

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 …

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 …

Torts-Defamation-Libel By Silence, J. G. Castel

Michigan Law Review

In an almanac published in 1939, Professor Turpain of the University of Poitiers, France, purported to name the inventors of radio. He failed to include the name of E. Branly. In 1940 Branly brought suit in the lower civil court of Poiters against Professor Turpain, alleging that he had been ''libelled" by silence. The court agreed with him. The court of appeals of Poitiers reversed the decision of the lower court and dismissed the case. Following Branly's death, his heirs questioned the validity of the decision of the court of appeals in the court of Cassation. The court held, …

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 …

Avoidance Of Constitutional Issues In The United States Supreme Court: Liberties Of The First Amendment, Burton C. Bernard

Michigan Law Review

The frequently criticized reluctance of the Supreme Court to consider complaints of unconstitutional governmental action is manifested in the utilization by the Court of various rules of avoidance of constitutional issues. Uncompromising defense of this self-restraint would not be easy to reconcile with the Court's pronounced sensitivity, in modem times, to the liberties of the First Amendment. This article will examine the considerations underlying the traditional restraint, and will suggest that the Court should modify several of its rules of avoidance, at least when liberties of the First Amendment are threatened.

Federal Procedure-Proper Venue In Patent Infringement Action Against Corporation, Gordon W. Hueschen S.Ed.

Michigan Law Review

Plaintiffs brought an action for patent infringement against defendant corporation in the Federal District Court for the Southern Division of California, alleging only defendant's "residence" within the district. Defendant moved to dismiss the complaint on the ground that defendant, being a Delaware corporation, did not "reside" within the district, thus rendering the venue defective. Plaintiffs replied that the word "resides," as used in the patent infringement venue section of the code, which states that "any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement …

Continuances In Washington, Phyllis A. Kemp

Washington Law Review

The granting or denying of a continuance is a matter within the sound discretion of the trial court, to be reversed only for a manifest abuse of discretion. This does not mean, of course, that the trial judge can decide by the toss of a coin whether to grant or deny a motion for continuance. He is under a positive duty to exercise his discretion wisely, keeping in mind the relative considerations of speedy justice as against the right to present all of the evidence available in support of one's case. A study of the cases will disclose some of …

Civil Procedure-Verdicts-New Trial For Defendant Because Of Inadequacy Of Verdict Against Him, Cleaveland J. Rice S. Ed.

Michigan Law Review

Plaintiff sued on a contract for a pro rata share of an agreed $750 annual bonus in addition to salary. The evidence was undisputed that plaintiff had worked for at least the first six months of the year, and possibly seven. The jury was instructed that if it should find that there was such a contract, it should return a verdict for a fractional part of $750, the amount depending upon the portion of the year worked. The result was a verdict in favor of plaintiff for only $312.50. The trial court denied defendant's motion for new trial on grounds …

Congressional Silence And The Supreme Court

Indiana Law Journal

No abstract provided.

Proposed Acts Concerning Wrongful Death And Survival Of Actions In Indiana

Indiana Law Journal

No abstract provided.

Labor Law—Injunctions—Jurisdiction Of N. L. R. B. Held Exclusive, Francis W. Greune.

Buffalo Law Review

Ryan v. Simons, 277 App. Div. 1000, 100 N. Y. S. 2d 18 (2d Dept. 1950).

Labor Law-Breach Of No-Strike Covenant-Damage Suits Against Unions, Bernard L. Goodman S. Ed.

Michigan Law Review

Plaintiff corporation and defendant union entered into a collective bargaining agreement which provided that there should be no strikes by members of the union until the grievance procedure prescribed therein was exhausted. A walkout in violation of this agreement occurred and the plaintiff sought damages for the consequent loss of profits. A statute provided that ''Whenever any unincorporated . . . association . . . shall be formed in this state . . . actions . . . may be brought by or against such associations. . . " On de novo hearing, held, the defendant was amenable to …

Municipal Corporations-Validity Of Agreement By Municipal Employees To Accept Less Than Statutory Salary, John T. Gallagher

Michigan Law Review

Plaintiff firemen sued the City of Chattanooga to recover the difference between the salary actually paid them during the depression years and the minimum salary provided by statute. The city, as a defense, relied upon certain instruments voluntarily executed by the plaintiffs by which they authorized the city auditor to reduce their salaries by a specified amount each month during these years so that the city could meet its budget without being compelled to exercise its legal right to reduce the fire force. The plaintiffs claimed that the reductions were illegal because of the minimum salary fixed by law. On …

Karlen: Primer Of Procedure, Charles W. Joiner

Michigan Law Review

A Review of PRIMER OF PROCEDURE. By Delmar Karlen.

Process--Immunity From Service--Person Entering A State To File An Action, Patrick J. Ledwidge

Michigan Law Review

Petitioner, a resident of Missouri, entered California to gain custody of his child from its maternal grandmother. After eight days of fruitless negotiation he commenced habeas corpus proceedings. While attempting to serve the writ of habeas corpus, petitioner was served with a summons in an action brought by the grandmother for support of the child. When the trial court denied petitioner's motion to quash the service of summons on him, he sought a writ of prohibition from the district court of appeals to prevent further prosecution of the second action. Held, petition denied; petitioner's eight day delay justified inference …

Labor Law-Breach Of No-Strike Covenant-Damage Suits Against Unions, Bernard L. Goodman S. Ed.

Michigan Law Review

Plaintiff corporation and defendant union entered into a collective bargaining agreement which provided that there should be no strikes by members of the union until the grievance procedure prescribed therein was exhausted. A walkout in violation of this agreement occurred and the plaintiff sought damages for the consequent loss of profits. A statute provided that ''Whenever any unincorporated . . . association . . . shall be formed in this state . . . actions . . . may be brought by or against such associations. . . " On de novo hearing, held, the defendant was amenable to …

Karlen: Primer Of Procedure, Charles W. Joiner

Michigan Law Review

A Review of PRIMER OF PROCEDURE. By Delmar Karlen.

The Limitation Of Taxation Of Transfers In Contemplation Of Death By The Revenue Act Of 1950, Edmund W. Pavenstedt

Michigan Law Review

The Revenue Act of 1950 amended the estate tax provision dealing with transfers in contemplation of death, which has been on the books ever since the estate tax first appeared as a war emergency measure during World War I, by eliminating from this category all transfers made more than three years prior to the date of death. All transfers made within that period are deemed under the new law to have been made in contemplation of death (and hence are includible in the transferor's gross estate) unless the contrary is shown. Such a rebuttable presumption formerly was limited by the …

The Limitation Of Taxation Of Transfers In Contemplation Of Death By The Revenue Act Of 1950, Edmund W. Pavenstedt

Michigan Law Review

The Revenue Act of 1950 amended the estate tax provision dealing with transfers in contemplation of death, which has been on the books ever since the estate tax first appeared as a war emergency measure during World War I, by eliminating from this category all transfers made more than three years prior to the date of death. All transfers made within that period are deemed under the new law to have been made in contemplation of death (and hence are includible in the transferor's gross estate) unless the contrary is shown. Such a rebuttable presumption formerly was limited by the …

Municipal Corporations-Validity Of Agreement By Municipal Employees To Accept Less Than Statutory Salary, John T. Gallagher

Michigan Law Review

Plaintiff firemen sued the City of Chattanooga to recover the difference between the salary actually paid them during the depression years and the minimum salary provided by statute. The city, as a defense, relied upon certain instruments voluntarily executed by the plaintiffs by which they authorized the city auditor to reduce their salaries by a specified amount each month during these years so that the city could meet its budget without being compelled to exercise its legal right to reduce the fire force. The plaintiffs claimed that the reductions were illegal because of the minimum salary fixed by law. On …

Process--Immunity From Service--Person Entering A State To File An Action, Patrick J. Ledwidge

Michigan Law Review

Petitioner, a resident of Missouri, entered California to gain custody of his child from its maternal grandmother. After eight days of fruitless negotiation he commenced habeas corpus proceedings. While attempting to serve the writ of habeas corpus, petitioner was served with a summons in an action brought by the grandmother for support of the child. When the trial court denied petitioner's motion to quash the service of summons on him, he sought a writ of prohibition from the district court of appeals to prevent further prosecution of the second action. Held, petition denied; petitioner's eight day delay justified inference …

Legal Problems Raised By Artificial Rainmaking, Gus D. Hatfield Jr.

Vanderbilt Law Review

The first reported decision involving the problem of the liability in law of the modern rainmaker has recently been rendered.' Though other disputes are reported to have arisen, they have not been finally decided in any regularly reported case.

The case was before the Trial Division of the Supreme Court of New York, the dispute having arisen out of experiments artificially to induce rainfall conducted by the City of New York during the recent, much publicized water shortage in that city. Plaintiffs, who were owners of a vacation resort in upper New York State, sought to enjoin these experiments on …

Bailments-Owner Of Railroad Station Lockers As Bailee Of The User's Goods, Richard W. Billings

Michigan Law Review

Action was brought by the plaintiffs for the loss of a package of costume jewelry placed in a locker owned by the defendant company. The locker was of the type commonly found in railroad stations; one desiring to use it merely places his goods in the locker, inserts a coin, removes the key and retains it in his possession. Although the defendant kept a master key and reserved the right to remove any article which remained in the locker longer than the 24-hour rental period, it exercised no other control. On the other hand, the user had access to the …

Agency-Election To Sue Undisclosed Principal Or Agent, Alan C. Boyd S. Ed.

Michigan Law Review

Plaintiff brought action against a principal and his agent to foreclose a mechanic's lien on the principal's real property, alleging that he had expended labor and materials in the improvement of the principal's land pursuant to a contract between himself and the agent. Though plaintiff joined the agent as a party defendant, he did not pray for relief against him. Both defendants moved to dismiss the action. Held, action dismissed as to the agent. Whether or not the principal was disclosed at the time the contract arose, the action was properly dismissed as against the agent. If the principal …