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IN CIVIL

IN

States follow the forms and rules of pleading observed in the courts of the States where they are held, except in those particulars that are regulated by Federal statutes. This rule applies : as regards the verification of pleadings, the time when pleadings must be served, after the return day, the manner of service of pleading 5 and the time within which pleadings may be amended as of course. It has been held that the State law concerning what constitutes a fatal variance between the facts and the pleadings must be followed. The extent to which pleadings may be amended is not dependent upon the State practice 8 but in determining the effect of an amendment the decisions of the State courts should ordinarily be followed.9

The courts should construe pleadings as alleging what they fairly would convey to an ordinarily intelligent lawyer by a fairly exact use of English speech.10

$ 454a. Plaintiff's pleadings at common law. The designation of the complaining party as “plaintiff” or as complainant” has no effect upon the determination whether the action is brought in law or in equity. The charge that fraud and concealment exists or that there has been a conspiracy in the matter, does not prevent an action for the payment of money

$ 454. 10. S. R. S., $ 913; Moy v. Mercer County, 30 Fed. 246; Myers v. Cunningham, 44 Fed. 346 per Ricks, J.; Marvin v. C. Aultman & Co., 46 Fed. 338, 339,

2 West v. Home Ins. Co., 18 Fed. 622; Cottier v. Stimson, 18 Fed. 689.

3 Ricard v. Inhabitants New Providence, 5 Fed. 433.

4 Ewing v. Burnham, 74 Fed. 384. See $ 455, infra.

5 Wilson v. Fine, 38 Fed. 789.

6 Rosenbach v. Dreyfuss, 1 Fed. 391; Hannum v. Jerome, 184 Fed. 179. But see Erstein' v. Rothschild, 22 Fed. 61.

7 Norfolk & A. Terminal Co. v. Ro. tole, C. C. A., 4th Ct., 179 Fed. 639, 645, where it was said that an application to amend upon the trial

should have been granted. See Kansas City Southern R. Co. v. Kaw Valley Drainage District, 233 U. S. 75. Central Vermont Ry. Co. v. White, 238 U, S. 507, 513; Truckee River General El. Co. v. Benner, C. C. A., 211 Fed. 79.

8 Erie R. Co. v. Schmidt, C. C. A., 255 Fed. 513; Manitowoc Malting Co. v. Fuechtwanger, 169 Fed. 983. But see Re Griggs, C. C. A., 233 Fed. 243.

9 Central Vermont Ry. Co. v. White, 238 U. S. 507, 513.

10 Kansas City Southern R. Co. v. Kaw Valley Drainage District, 233 U. S. 75.

$ 454a. 1 Motley, Green & Co. v. Detroit Steel & Spring Co., 161 Fed. 389.

or for the recovery of real or personal property from being prosecuted upon the common law side of the court.2

The right of the plaintiff to reply 3 and the matter which can be set up in a reply, such as the tolling of the Statute of Limitations, are governed by the State practice.

The opening of a default upon condition that defendant plead within a specified time deprives him of the right to object because he had no notice of the plaintiff's pleading. The plaintiff may so allege the facts as to leave himself free to evolve any theory at the trial which is supported by them. When his cause of action depends upon an express contract his part of which has been performed and nothing remains to be done except payment by defendant, he may set forth the common counts in general assumpsit and prove the special contract as the measure of his damage. The facts showing that the plaintiff has sustained damages must be averred.8 If such facts are alleged, and a specific sum is claimed, an averment that damages have been sustained, is not required. It has been held that annexing to a complaint, as an exhibit, a copy of the contract sued upon, with a reference to the same in the body of the pleading, is not equivalent to positive allegations in the complaint of the terms of the contract according to their legal effect or in hæc verba.10 And that a suit upon a special contract not executed must be on a count setting out the special contract; but when the special contract has been executed the common counts are sufficient. 11

2 South Penn Oil Co. v. Miller, C. C. A., 175 Fed. 729.

Houck Mfg. Co., C. C. A., 249 Fed. 285, 289,

3 Hartley v. Lapidus & Holub Co., C. C. A., 216 Fed. 92.

4 Boatmen's Bank of St. Louis, Mo., v. Fritzlen, 221 Fed. 145.

5 Buckeye Cotton Oil Co. v. Sloan, C. C. A., 250 Fed. 712.

6 Gimbel Bros. v. Adams Express Co., 217 Fed. 318.

7 Dermott v. Jones, 2 Wall 1, 17 L. ed. 762; Dubois v. Canal Co., 2 Wendell (N. Y.) 285; Ward, J.; in dissenting opinion, Cowen Co. v.

8 U. S. v. Bell, 127 Fed. 1002. See Maryland Casualty Co. v. Price, C. C. A., 231 Fed. 397.

9 Murphy V. Mitchell, 245 Fed. 219. See De St. Aubin v. Paul Guenther, 232 Fed. 411.

10 Penrose v. Pacific Mutual Life Ins. Co., 66 Fed. 253.

11 Chesapeake & 0. C. Co. v. Knapp, 9 Peters, 541, 563, 9 L. ed. 222, 230; Dawes & Co. v. Peebles' Sons Co., 6 Fed. 856, 858.

In an action upon a foreign judgment the State practice must be followed. 12

In an action upon a judgment of a State court, an allegation that such court was one of general jurisdiction is sufficient, even when the judgment is one for divorce and alimony.13

An allegation that a postmaster has not been removed according to law, is a conclusion of law which should be disregarded. 14 An averment that the Postmaster General has assumed the authority to remove a postmaster, of his own act and decision, without facts showing that the removal was unauthorized, does not negative the legality of the removal; since it will then be presumed, that the Postmaster General acted by direction of the President.15

In a complaint to recover back subscriptions to stock obtained by fraud; allegations that the corporation was never legally organized, nor authorized to transact business, because its capital was never paid in and that was insolvent, are not inappropriate.16

$ 454b. Parties in actions at common law. By the Judicial Code which reenacts the Act of February 24, 1839,1 and the Revised Statutes 2 in this respect: “When there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are prop. erly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process nor voluntarily appearing to answer; and non-joinder of parties who are not inhabitants of nor found within the district, as aforesaid, shall not constitute matter of abatement or objection to the suit."' 3

In an action against parties jointly liable, those who cannot

12 Cruz v. O'Boyle, 197 Fed. 824.

13 Cotter v. Cotter, C. C. A., 225 Fed. 471.

16 Kelton v. Du Pont, 256 Fed. 546.

$ 454b. 136 St. at L. 1101.
2 U. S. R. S., $ 737.

14 Porter v. Coble, C. C. A., 246 Fed. 244, 245.

15 Ibid.

38 50, 36 St. at L. 1101, Comp. St. § 1032. See supra, 8 120.

be sued within the district, or whose residence, or citizenship, 6 would defeat the jurisdiction, need not be joined.

The liability for tort is joint and several.? Consequently one or more of the tortfeasors may be made party defendant to an action for a tort. This is the case in an action against trustees for the negligent management of their trust.' The failure to prove a conspiracy charged in a civil action is not a ground for its abatement. 10

The United States may sue at common law upon a contractor's bond for the benefit of subcontractors, laborers, and material men, when the liability of the sureties is contested.11 When there is no such contest, the suit is treated as if brought for the, distribution of a fund in court and must be brought in equity.12 An action may be brought at common law in the name, of the United States, upon the bond of a clerk of a Federal court 13 or of a postal clerk 14 for the benefit of the persons injured, by the defendant's misconduct, or other defalcation..

Where it appears that one of two or more joint plaintiffs have no interest in the relief prayed, the action should be dismissed.15 It was so held where one of them had consented to the act of which complaint was made.16

4 Clearwater v. Meredith, 21 How. 489, 493.

6 Ibid, Camp v. Gress, 250 U. S. 308, 316, affirming, C. C. A., 244 Fed. 121.

6 Clearwater v. Meredith, 21 How. 489, 493.

7 Mississippi & Missouri R. R. Co. v. Ward, 2 Black 485, 17 L. ed. 311, supra, $ 119.

8 Ibid.

9 Parsons v. Howard, 2 Woods, 1, 5; Heath v. Erie Ry. Co. 8 Blatchf. 347, supra, $ 119.

10 Medlin Milling Co. v. Moffatt Commission Co., 218 Fed. 686.

11 Illinois Surety Co. v. U. S. to the use of Peeler 240 U. 8. 214, 223.

12 Ibid., 240 U. S. 214, 225; supra, $ 5a.

13 U. S. v. Bell, 127 Fed. 1002. See Kinney v. U. S. Fidelity & Guaranty Co., 182 Fed. 1005 holding that in such an action for the clerk 's refusal to enter judgment and issue execution against a garnishee, the burden rests upon plaintiff to prove that the judgment could have been collected if the exeeution had been issued.

14 U. S. v. U. S. Fidelity & Guaranty Tr. Co., C. C. A., 742 Fed. 16; holding that in such an action the defendant could not move for an interpleader.

15 Southern Ry, Co. v. Meaher, 238 Fed. 538. But see Morton v. Ft. Lyon Canal Co., 238 Fed. 501.

16 Southern Ry. Co. v. Meaher, c, C. A., 238 Fed. 538.

Otherwise, the State practice as regards the joinder of plaintiffs 17 or defendants 18 in actions at common law is usually followed. This is the case as regards the omission of a woman, even when she is an alien.19

$ 454c. Joinder of causes of action at common law. The State practice is usually followed as to the right to join different causes of action at common law in the same suit.

Before the act of March 3, 1915,2 legal and equitable causes of action could not be joined in the same suit, although this was permitted by the State practice.3

A count upon a special contract for the performance of services or the sale of material can usually be joined with a count upon a quantum meruit. So in an action by the assignor of a contract, may be a count to recover in his own right with one to recover for the benefit of the assignee. In trespass on the case, two causes of action held by the plaintiff which arise out of substantially the same transactions and depend upon substantially the same evidence may usually be joined. Such are claims for criminal conversation with the plaintiff's wife and for alienation of her affections. In an action by the United States to recover the value of imported merchandise forfeited because of false invoices and declarations, the plaintiff's pleadings may aver both a false invoice presented to a consul in France and a false declaration upon a written entry in the United States.8 Under the Alaska statute in a suit against

17 Delaware Co. Com 'rs v. Diebold S. Co., 133 U. 8. 473, 488, 33 L. ed. 674, 680; Perry v. Mechanics' Mut. Ins. Co., 11 Fed. 478; United Mine Workers of America v. Coronado Coal Co., 258 Fed. 829.

18 Columbia Digger Co. v. Rector, 215 Fed. 618.

19 Morning Journal Ass'n v. Smith, C. C. A., 56 Fed. 141.

$ 454c. 1 Castro v. De Uriarte, 12 Fed. 250 Columbia Digger Co. v. Rector, 215 Fed. 618; United Mine Workers of Am. v. Coronda Coal Co., C. C. A., 258 Fed. 829. But see O'Connell v. Reed, C. C. A., 56 Fed.

531; Bowden v. Burnham, C. C. A., 59 Fed. 752; Holt v. Bergevin, 60 Fed. 1.

2 38 St. at L. 956, quoted supra, $206.

3 Berkey v. Cornell, 90 Fed. 711.

4 Guerini Stone Co. v. Carlin Constr. Co., 248 U. S. 331.

5 Light v. Gray & Davis, 250 Fed: 631; Light et al. v. Gray & Davis, Inc.

6 Harper v. Harper, 252 Fed. 39. 7 Ibid. 8 U. S. v. Leon Rheims Co. et al., 246 Fed. 179.

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