order for irregularity, it is usual for the notice to state the ground of the application.16 It is usual for the notice also to state before what judge the motion will be made; and to specify the affidavits and other documents which will be used in its support.17 The notice must state clearly the terms of the order which will be asked for, and everything which the party would have should be expressed; as the court will not extend the order beyond the notice.18 For this reason, it is usual to add a notice of a motion for general relief; that is, "for such other or further order or relief as to the court shall seem just;" under which, other relief germane to that, a motion for which has been specifically noticed, may be granted.19 A general appearance and consent to an adjournment waives a defect in a notice of motion.20 It has been held that on the hearing of a motion for the production of papers under a subpoena duces tecum coupled with a prayer for general relief, if the other party appears by counsel, an order may be granted committing him, or, if a corporation, committing its officers, for contempt for disobedience to the subpoena.21 It has been held that a motion for the appointment of a receiver cannot be made at the hearing, upon a motion for an injunction against an interference with a railroad claimed to be in the possession of the moving party.22 "A motion to supress depositions brings up the regularity of an ex parte order directing them to be taken, as well as the competency of the witnesses examined, if the party moving to suppress has never done anything to waive the objection." 23 A motion may be made by any party to a cause except one who is in contempt.24 A party in contempt cannot move for any other purpose than to discharge the contempt proceedings,25 or to expunge scandal from the record.26 And it has been said that, in such cases, he should apply by petition.27 No one should join 16 Brown v. Robertson, 2 Phil. 173; Alexander v. Esten, 1 Caines (N. Y.), 152; Jackson v. Stiles, 1 Cowen (N. Y.), 134. 17 Daniell's Ch. Pr. (2d Am. ed.) 1793; Clement v. Griffith, C. P. Coop. 470; Brown v. Ricketts, 2 J. Ch. (N. Y.) 425. 18 Barbour's Ch. Pr. 570; Mann v. King, 18 Ves. 297. 19 Barbour's Ch. Pr. 570. 20 Marye v. Strouse, 6 Sawyer, 204. 21 Edison Electric Light Co. v. U. S. Electric Lighting Co., 44 Fed. R. 294, 300. 22 St. L. K. C. & C. Ry. Co. v. Dewees, 23 Fed. R. 691. 28 Mr. Justice Bradley in Eslava v. Mazange, 1 Woods, 623, 627. 24 Daniell's Ch. Pr. (2d Am. ed.) 1787; Nicholson. Squire, 16 Ves. 259, 260. 25 Daniell's Ch. Pr. (2d Am. ed.) 554– 558, 1787; Anon., 5 Ves. 656. 26 Everett v. Prythergch, 12 Simons, 363. 27 Lord Eldon in Nicholson v. Squire, 16 Ves. 259, 260. in a notice for a motion in which he is not directly interested.28 The joinder of one disinterested party with others who had an interest was held in England a sufficient reason for refusing the whole motion.29 A motion in the course of proceedings under an information cannot be made on behalf of the relators, but only on behalf of the attorney-general or district attorney.30 Where it is clearly for the interest of a person under a disability to make a motion, and he has no next friend, or his next friend refuses to do so, a next friend for the purposes of the application may move on his behalf.31 A number of objects not inconsistent with each other, and even inconsistent objects, if prayed for in the alternative, may be included in the same notice and motion.32 The court will discourage when directing as to costs the making of separate motions for objects which might have been conveniently obtained by a single application.33 §198. Argument of Motions. The manner of bringing motions to a hearing is regulated by local rule or usage differently in the different circuits. Lord Campbell has thus described the former English practice, which was abolished by Lord Mansfield, whose rules for the hearing of motions at common law were followed by the Court of Chancery: "Day by day during the term, each counsel when called upon had been accustomed to make as many motions successively and continuously as he pleased. The consequence was, that by the time the Attorney and SolicitorGeneral, and two or three other Dons, had exhausted their motions, the hour had arrived for the adjournment; and as the counsel of highest rank was again called to at the sitting of the court next morning, juniors had no opportunity of making any motions with which they might be intrusted till the last day of term, when it was usual, as a fruitless compliment to them, to begin with the back row, after the time had passed by when their motions could be made with any benefit to their clients. The consequence was, that young men of promise were unduly depressed, and more briefs were brought to the leaders than there 28 Daniell's Ch. Pr. (2d Am. ed.) 1793; Folland v. Lamotte, 10 Simons, 486. 29 Folland v. Lamotte, 10 Simons, 486. 30 Attorney-General v. Wright, 3 Beav. 447. 31 Cox v. Wright, 9 Jur. (N. s.) 981; Guy v. Guy, 2 Beav. 460; Furtado v. 82 Daniell's Ch. Pr. (2d Am. ed.) 1792, 1793. 83 Hawke v. Kemp, 3 Beav. 288. was time for them to read, even had they been toiling all night at their chambers instead of sitting up in the House of Commons, absorbed in party struggles. Thus the interests of the suitors were in danger of being neglected, and the judges did not receive the fair assistance from the bar in coming to a right conclusion which they were entitled to expect. To remedy these evils, a rule was made that the counsel should only make one motion. a-piece in rotation; and that if by chance the court rose before the whole bar had been gone through, the motion should begin next morning with him whose turn it was to move at the adjournment. The business was thus both more equally distributed and much better done." This custom, however, if it ever did prevail, was early abolished in this country; and here usually either no method is observed, and motions are made by counsel as they catch the judge's eye, or a calendar upon which motions are placed by the clerk in the order in which they were first brought to his attention, is made and called. In the Supreme Court of the United States the Attorney-General and the Solicitor-General take precedence. When, at the hearing of a motion, the opposite party is not represented, proof of service must be shown by entry in the order-book, affidavit, or admission; and the hearing may then proceed ex parte. When the moving party does not then appear, his motion will be dismissed. When both sides are represented, the moving party has the right of opening and replying.3 The English rule was that, "in injunction cases, where upon an order to dissolve an injunction nisi the plaintiff shows cause upon the merits confessed in the answer; then no reply is allowed, the motion for the order nisi being considered as the application, to which the plaintiff answers by showing cause upon the merits; after this, the defendant's counsel is allowed to argue against the cause shown by the plaintiff, and this is considered as the reply."4 As a general rule, no person can be heard in support of a motion unless he has been one of the parties who gave notice of it.5 But when the object of a motion is to reverse the conclusion of a master, it seems that all persons § 198. 1 Campbell's Lives of the Chief Justices, ch. xxxiv. pp. 398, 399. See also Daniell's Ch. Pr. (2d Am. ed.) 1797. 2 Rule 6. 8 Daniell's Ch. Pr. (2d Am. ed.) 1799. + Daniell's Ch. Pr. (2d Am. ed.) 1799. 5 Stubbs v. Sargon, 3 Beav. 408; Daniell's Ch. Pr. (2d Am. ed.) 1793. interested in the master's report are entitled to be heard in its support. At the hearing, if the English practice should be followed, any affidavit might be read by either party that had been filed in the clerk's office before the hearing. If an affidavit were filed too late for the other side to take a copy of it, or to obtain an affidavit controverting facts stated in it, that was a ground for moving to postpone the hearing. No affidavit filed previous to the entry of the motion could be used by the moving party, unless he had in his notice of motion stated specifically that he intended to use it. A separate notice to that effect, if served a reasonable time before the hearing of the motion, would, however, probably be sufficient. This subject is, however, by local rule or custom regulated differently in the different circuits. Where an order is made by which a particular act is to be done, unless the other party shall within, or rather, as is the usual American custom, at a certain time, show cause to the contrary; which order is called in England an order nisi, in the United States usually an order to show cause; the party obtaining it must, on the return-day, move for another order "to confirm the previous order nisi absolute." The motion, in this case, requires no notice, but the application must be supported by an affidavit to prove due service of the order nisi, similar to the proof of service of a notice of motion, unless a different mode or time of service be directed by the judge granting it.8 By rule, in the Circuit Court for the Southern District of New York, "all special motions, in reference to matters of practice, may be made in open court, or before a judge at chambers." 9 - § 199. Petitions in General. A petition is a request in writing directed to the judge or judges of the court, and showing some matter or cause whereupon the petition prays some direction or order. It may be made by one who is, or by one who is not, a party to a cause pending in the court. Lord Erskine said. formerly: "I do not find that there are any precise or positive boundaries between motions and petitions, as they are to be applied to carry into effect decrees and orders, so as to exclude all discretion in the court to grant or refuse them, accord 6 Johnston v. Todd, 5 Beav. 394; Daniell's Ch. Pr. (2d Am. ed.) 1793. 7 Daniell's Ch. Pr. (2d Am. ed.) 1797, 8 Daniell's Ch. Pr. (5th Am. ed.) 1593 9 U. S. C. C., S. D. N. Y. Rule 111. § 199. 12 Barbour's Ch. Pr. 579. ing to circumstances; but, generally speaking, motions which have for their object the giving effect to decrees or orders, should be confined to cases where the order which is to be made upon the motion arises out of recent proceedings upon which there is no doubt; for as the adverse party knows nothing but by the notice, containing only the name of the cause and what is prayed of the court, the proceedings ought to be recent and notorious, so as that the adverse party may be supposed to be perfectly conusant of all the steps and proceedings in the cause, as much as if, at a greater expense, they were recited in the petition."2 But petitions are now rarely filed by a party to a cause, since any relief which he desires can usually be obtained equally well by a motion supported by an affidavit containing the allegations which would be necessary in a petition. Petitions are usually filed by some person not a party in order to obtain the benefit of proceedings in a cause pending in the court, or else to obtain an order in relation to some matter which is not the subject of any litigation in it. Petitions which are made in a cause are termed cause petitions. The most common instances of cause petitions are petitions for the appointment of a next friend, petitions of intervention, petitions for payment out of a fund in the hands of an officer of the court, and petitions for leave to sue a receiver. The most common instances of petitions which are not cause petitions are petitions for the appointment, removal, or resignation of a trustee, and petitions for the appointment of the guardian of an infant, and the maintenance of the infant out of his property. But in most, if not all, of these cases the application can also be made by motion, unless a long statement of facts is needed to show the right of the applicant to relief. After a decree which purports to finally dispose of the suit, one plaintiff cannot obtain relief against another by means of a petition setting up matters which could not have been introduced by an amended or supplemental bill; at least without notice to the party against whom he seeks relief.5 Ordinarily, a petition cannot be presented in a cause before the bill has been filed. A petition for leave to sue in forma pauperis 2 Lord Shipbrooke v. Lord Hinchinbrook, 13 Ves. 387, 393. See, however, Nicholson v. Squire, 16 Ves. 259, 260. 8 Daniel's Ch. Pr. (2d Am. ed.) 1801. 4 Jones v. Roberts, 12 Simons, 189; Barker v. Todd, 15 Fed. R. 265. 5 Smith v. Woolfolk, 115 U. S. 143. |