Imagini ale paginilor
PDF
ePub
[ocr errors]

the common law, were largely trenched upon."
"The personal conduct and administration of the judge
in the discharge of his separate functions is, in our
judgment, neither practice, pleading, nor a form nor
mode of proceeding within the meaning of those terms
as found in the context."

397.

Conformity to Be Only as Near as May Be.In a subsequent case the Court pointed out that

"the conformity is required to be 'as near as may be’--not as near as may be possible, or as near as may be practicable. This indefiniteness may have been suggested by a purpose: it devolved upon the judges to be affected the duty of construing and deciding, and gave them the power to reject, as Congress doubtless expected they would do, any subordinate provision in such State statutes which, in their judgment, would unwisely encumber the administration of the law, or tend to defeat the ends of justice, in their tribunals. While the act of Congress is to a large extent mandatory, it is also to some extent only directory and advisory."

398. Conformity Statute and Rules of Court.A rule of the United States Court for the District of Colorado provided that the defendant should appear, demur or answer within ten days from the day of service, if such service be made within the county from which the summons is issued. A subsequent statute of Colorado extended the time to twenty days. A defendant appeared within ten days and moved to quash the return on the ground that the process was not the process required by the Act of Congress, in that it did not give the defendant the number of days in which to appear and answer or demur accorded by the State law. The Supreme Court held that the summons was in proper form and said:

"We think *** while it was the purpose of Congress to bring about a general uniformity in Federal and State proceedings in civil cases, and to confer upon suitors in Courts of the United States the advantages of remedies provided by State legislation, yet that it

'Indianapolis R. R. Co. vs. Horst, 93 U. S. 301.

was also the intention to reach such uniformity often largely through the discretion of the Federal courts, exercised in the form of general rules, adopted from time to time, and so regulating their own practice as may be necessary or convenient for the advancement of justice and the prevention of delays in proceedings."1

Any other construction would involve an unconstitutional delegation of congressional power to State legislatures.

399. The Conformity Statute Yields to the Constitution and to Any Specific Federal Statute.—The separation of law and equity, and the requirement that in trials at common law when a sum greater than $20 is at issue, either party is entitled to a trial by jury, by which is meant a trial conducted substantially as jury trials were conducted at the time of the adoption of the Constitution, necessarily in many features make radical distinctions between the State and Federal procedure. Nor will the Courts assume that Congress by the Conformity Act intended to repeal or change any specific provision, it had already made for the government of the procedure of the Federal Courts, much less can it be supposed that Congress by enacting it attempted to tie its hands for the future. It follows that the Conformity Act must yield to the other legislation of Congress.1

400. The Conformity Act Does Not Adopt for Federal Courts State Statutes as to Service of Process Inconsistent With the General Principles of Jurisprudence. It sometimes happens that State statutes go very far in attempting to extend the jurisdiction of their Courts over persons who, according to the general principles of jurisprudence, are not subject thereto. This tendency is especially manifested with reference to corporations. In some States a corporation may be bound by service on one of its agents or employees found in the State, although it was not incor

1 Shepard vs. Adams, 168 U. S. 625.

1 Southern Pacific Co. vs. Denton, 146 U. S. 202.

porated therein and is not at the time of such service doing business within it, either generally or specially. The Conformity Statute does not require or permit the Federal Courts to hold such service valid when under general principles of jurisprudence it would not have been. This rule applies as well to cases instituted in the United States Courts as to those brought in the State tribunals and thence removed to the Federal.1

401. Conformity Statute Does Not Control Mode of Proof in Federal Courts.-Congress has prescribed the mode of proof in actions in the Federal Courts. It has said that this shall be by the oral examination of witnesses in open Court and has provided that, under certain specific exceptional circumstances, depositions taken elsewhere may be admitted in evidence. It is not in the power of State legislation to add to or withdraw from those exceptions. Congress, it is true, has provided that in addition to the other modes of taking depositions prescribed by the Revised Statutes, it shall be lawful to take them in the manner fixed by State law. This permission, however, relates merely to the way in which a deposition may be taken when such deposition is under the Federal law admissible at all. It does not extend the cases in which depositions may be admitted.1

402. Whether a Plaintiff in a Personal Injury Case May Be Required to Submit to Physical Examination Depends on the State Law.-At common law the Court had no power to require a plaintiff in a personal injury case to submit to a physical examination.1

A statute of New Jersey authorized the Court in a litigation of that character, upon the application of the defendant to order one. The question arose as to whether the United States Court, sitting in that State, could do the like. The Supreme Court held that the statute was one of the laws of the State which by section 721 of the

'Mechanical Appliance Co. vs. Castleman, 215 U. S. 437. 'Hanks Dental Assn. vs. Tooth Crown Co., 194 U. S. 310. 'Union Pacific Ry. Co. vs. Botsford, 141 U. S. 250.

Revised Statutes, as we shall later see, were to be regarded as a rule of decision of the Courts of the United States when not in conflict with the Federal Constitution, treaties or statutes; and that there is nothing in the laws of the United States to prohibit such an examination, when made at the trial, although under them it could not have been required against the plaintiff's consent in advance thereof.2

403. State Statutes or Usages as to Continuances Are Not Binding on the Federal Courts.-The statute law of Texas under certain circumstances gives a party an absolute right to at least one continuance. The defendant in a case depending before the United States Court sitting in Texas sought to avail itself of this privilege. The Circuit Court of Appeals for the Fifth Circuit held that such State law was not binding on the Federal Courts, and that whether a continuance should or should not be granted rested in the sound discretion of the trial judge.1

404. Amendment of Pleadings Freely Permitted.— The framers of the original Judiciary Act of 1789 were far ahead of their contemporaries in the liberality of their provisions for amendment. Indeed it is doubtful whether in any modern State Code there is any more liberal and enlightened provision for amendment than was then made. In most of the States, even today, the right to correct errors in pleadings is by no means as extensive as it is under this Federal law passed one hundred and twenty-five years ago. The provisions which formed section 32 of the Judiciary Act of 1789 are now codified as section 954 of the Revised Statutes. They direct the Federal Courts in civil cases to ignore all defects of form except those attacked by demurrer and substantially assigned in the demurrer itself as grounds therefor. The Court is, in the broadest way, authorized at any time to permit amendments in the process or pleadings upon such conditions as it shall in its discretion, and by its rule, prescribe. It follows that any amendments which would

Camden & Suburban Ry. Co. vs. Stetson, 177 U. S. 172. 'Texas & P. Ry. Co. vs. Nelson, 50 Fed. 814.

be allowable under State practice will be permitted by the Federal Court unless, perhaps, where their effect would be to violate some of the cardinal rules governing the jurisdiction or procedure of the Federal Courts. On the other hand, no State statute or practice can limit the power of the Federal Courts to permit amendments. Thus

The California form of Lord Campbell's Act requires that the suit shall be brought by the legal representatives of the decedent for his next of kin.

In the United States Court for the Northern District of California such a suit was brought by the father of the deceased in his own name. He was the next of kin. The error was not discovered until after the time in which a new suit could be brought. It was held that he should be allowed. to amend his old action in such manner as to substitute the administrator of the deceased as party plaintiff for the father.1 It was immaterial that such substitution would not have been permitted in the State Courts.

405. Federal and State Pleading Nearly Identical— Federal and State Practice Similar.-For practical purposes it is sufficiently accurate to say that in most matters of pleading the procedure on the law side of the United States Courts, sitting in any State, is very nearly the same as in the Courts of that commonwealth, except that in the Federal tribunals the existence of facts necessary to jurisdiction must be averred and the line dividing equitable from legal remedies must be preserved. Where it comes to what are more strictly matters of practice, the procedure of the United States Courts is in many respects identical with that of the State Courts, and in almost all others substantially similar thereto. In all such matters, however, the prudent practitioner will always carefully examine the Federal Statutes and the rules of the particular United States Court in which he is practicing.

'Reardon vs. Balaklala Consolidated Copper Co., 193 Fed. 189.

« ÎnapoiContinuă »