to find all the references to it in later cases. In this way I may find whether it has been approved, followed, over-ruled, criticised, or modified. These systems are mere tables of references, with no or very little comment. Legal Periodicals. These periodicals contain articles, notes upon cases, etc. (The majority of them are published by the law schools. Among the important ones are: The Harvard Law Review, The Yale Law Journal, The Columbia Law Review, The Illinois Law Review, The Michigan Law Review, The American Law Review, The Green Bag.) CHAPTER 4 THE JUDICIAL SYSTEM § 21. Function of the courts. § 22. Courts of law and courts of equity. § 23. Courts of original jurisdiction and of review. § 24. The progress of a case through the courts. § 21. (General Review, Sec. 21.) Function of the courts. (Note: The judicial courts are established for the purpose of deciding legal contests and granting legal remedies.) § 22. (General Review, Sec. 22.) Courts of law and courts of equity. (Note: The courts of law and courts of equity are both courts of law in the general sense. The distinction has historical origin. The court of law has jurisdiction in civil cases to give damages for breach of contract, for commission of tort, and to try criminal cases. It may give judgment (in replevin) for the recovery of the plaintiff's personal property; and (in ejectment) for the wrongful withholding of plaintiff's real property. The court of equity has established a number of equitable titles and doctrines, and developed a wide variety of equitable remedies, such as the remedy of injunction, of specific performance, of removing clouds on title, etc. See American Commercial Law Series, Vol. 1, Sec. 22.) § 23. (General Review, Sec. 23.) Courts of original jurisdiction and of review. (Note: Courts may be divided into those that have original jurisdiction of causes, and those whose function is to review cases that are brought to them from the lower courts. In the Courts of original jurisdiction the trial takes place, the evidence is heard, and the judgment rendered. It is in these courts of course that the jury sits to determine questions of fact. A Court of Review does not hear evidence, but merely passes upon the record that is brought up from the court below, and on this record determines whether the case was correctly tried in the court below. It does not disturb the findings of fact of the trial court unless those findings are clearly against the weight of the evidence; in other words, it will not usurp the function of a jury. Its purpose is to determine whether error was committed in the trial below, so that the appealing party did not get a fair trial. It is obviously true that the vast majority of cases are never taken up to the higher courts. It is a costly process and unless a party feels that the appeal will probably result in a reversal of the court below, and unless he also feels that the amount involved or the question involved is of enough importance, he generally will not appeal. The Judicial Reports are reports of decisions in these Courts of Review. These courts are variously called Courts of Appeal, Appellate Courts, Supreme Courts, etc. If the Court of Review is of the opinion that no substantial error has been committed in the trial of the case, it will affirm the decision; otherwise it will reverse it, and in reversing it, may send the case back for a new trial. Trial courts are frequently called nisi prius courts.) § 24. (General Review, Sec. 24.) The progress of the case through the courts. (Note: The progress of a case through the courts is as follows: 1. The pleadings. When a case is begun the issues involved are set forth in written papers called pleadings. In the common law courts the plaintiff's statement is called the declaration and the defendant's answer is called a plea. If the plaintiff replies to this his reply is called a replication, and to this the defendant may file a rejoinder. If a pleading is deemed insufficient by the other party he may demur to it and this demurrer is either sustained or overruled upon argument. Frequently a demurrer will settle the case without any trial as it raises the question of the sufficiency of the case as stated in the pleading. If the demurrer is sustained, the pleading may be amended if it is amendable, but if it already sets forth as favorably as possible the case or the defense, then the demurrer may result in a final disposition. In Courts of Equity the complainant's case is set forth in what is called a bill in equity, and the defendant's case is set forth in an answer. The sufficiency of these equitable pleadings may likewise be raised by demurrer to the bill or exceptions to the answer. The old system of common law pleading was very technical. It has lost considerable of its useless technicalities under the influence of modern ideas, and in some states there is what is called code pleading supposed to be by way of reform. However, under any system there must be a statement of a case by the plaintiff and a defense by the defendant before the case is at issue and ready for trial. 2. The trial. If the case is at issue under the pleadings it proceeds to trial. The parties are entitled to a trial by jury in the common law courts, but there is no jury in Courts of Equity. Juries pass upon questions of fact under instructions from the court. The court determines questions of law. The evidence goes in and there is a finding of fact by the court where there is no jury, or a verdict by the jury. A defeated party may make a motion for a new trial. If this motion is overruled or if none is made, judgment is entered upon the verdict or the finding. 3. The appeal. The defeated party may appeal as we have noticed in the section above. 4. Title of the cause. A case goes by the name of the plaintiff vs. the defendant, as Johnson vs. Ferguson. If the plaintiff, Johnson, loses, he may appeal and the case will still be called in the Court of Appeal, Johnson vs. Ferguson. If, however, the defendant, Ferguson, loses, and carries up his case, the case may be entitled in the upper court Ferguson vs. Johnson. But in some jurisdictions the rule has been changed so that the title of the case keeps the same order throughout its career no matter which party takes it to the court of review. So that it is not always possible for one to tell at a glance at the title which party was originally plaintiff. This explains why in some of the cases in this book the name of the case is Defendant vs. Plaintiff.) |