Imágenes de páginas
PDF
EPUB

Compare with code provisions which make the action dependent upon the propriety of joinder of the parties. See Blume, The "Common Questions" Principle in the Code Provision for Representative Suits, 30 Mich. L. Rev. 878 (1932). For discussion of what constitutes "numerous persons" see Wheaton, Representative Suits Involving Numerous Litigants, 19 Corn. L. Q. 399 (1934); Note, 36 Harv. L. Rev. 89 (1922).

Clause (1). Joint, Common, or Secondary Right. This clause is illustrated in actions brought by or against representatives of an unincorporated association. See Oster v. Brotherhood of Locomotive Firemen and Enginemen, 271 Pa. 419, 114 Atl. 377 (1921); Pickett v. Walsh, 192 Mass. 572, 78 N. E. 753, 6 L. R. A. (NS) 1067 (1906); Colt v. Hicks, 97 Ind. App. 177, 179 N. E. 335 (1932). Compare Rule 17 (b) as to when an unincorporated association has capacity to sue or be sued in its common name; United Mine Workers of America v. Coronado Coal Co., 259 U. S. 344 (1922) (an unincorporated association was sued as an entity for the purpose of enforcing against it a federal substantive right); Moore, Federal Rules of Civil Procedure: Some Problems Raised by the Preliminary Draft, 25 Georgetown L. J. 551, 566 (for discussion of jurisdictional requisites when an unincorporated association sues or is sued in its common name and jurisdiction is founded upon diversity of citizenship). For an action brought by representatives of one group against representatives of another group for distribution of a fund held by an unir.corporated association, see Smith v. Swormstedt, 16 How. 288 (U. S., 1853). Compare Christopher, et al. v. Brusselback, 58 S. Ct. 350 (1938).

For an action to enforce rights held in common by policyholders against the corporate issuer of the policies, see Supreme Tribe of Ben Hur v. Cauble, 255 U. S. 356 (1921). See also Terry v. Little, 101 U. S. 216 (1880); John A. Roebling's Sons Co. v. Kinnicutt, 248 Fed. 596 (D. C. N. Y., 1917) dealing with the right held in common by creditors to enforce the statutory liability of stockholders.

Typical of a secondary action is a suit by stockholders to enforce a corporate right. For discussion of the general nature of these actions see Ashwander v. Tennessee Valley Authority, 297 U. S. 288 (1936); Glenn, The Stockholder's

Suit-Corporate and Individual Grievances, 33 Yale L. J. 580 (1924); McLaughlin, Capacity of Plaintiff-Stockholder to Terminate a Stockholder's Suit, 46 Yale L. J. 421 (1937). See also Subdivision (b) of this rule which deals with Shareholder's Action; Note, 15 Minn. L. Rev. 453 (1931).

Clause (2). A creditor's action for liquidation or reorganization of a corporation is illustrative of this clause. An action by a stockholder against certain named defendants as representatives of numerous claimants presents a situation converse to the creditor's action.

Clause (3). See Everglades Drainage League v. Napoleon Broward Drainage Dist., 253 Fed. 246 (D. C. Fla., 1918); Gramling v. Maxwell, 52 F. (2d) 256 (D. C. N. C., 1931), approved in 30 Mich. L. Rev. 624 (1932); Skinner v. Mitchell, 108 Kan. 861, 197 Pac. 569 (1921); Duke of Bedford v. Ellis (1901) A. C. 1, for class actions when there were numerous persons and there was only a question of law or fact common to them; and see Blume, The "Common Questions" Principle in the Code Provision for Representative Suits, 30 Mich. L. Rev. 878 (1932).

Note to Subdivision (b). This is Equity Rule 27 (Stockholder's Bill) with verbal changes. See also Hawes v. Oakland, 104 U. S. 450 (1882) and former Equity Rule 94, promulgated January 23, 1882, 104 U. S. IX.

Note to Subdivision (c). See McLaughlin, Capacity of Plaintiff-Stockholder to Terminate a Stockholder's Suit, 46 Yale L. J. 421 (1937).

Rule 24. Intervention.

The right to intervene given by the following and similar statutes is preserved, but the procedure for its assertion is governed by this rule:

U. S. C., Title 28:

§ 45a (Special attorneys; participation by Interstate Commerce Commission; interven

tion) (in certain cases under interstate commerce laws)

§ 48 (Suits to be against United States; intervention by United States)

§ 401 (Intervention by United States; constitutionality of federal statute)

U. S. C., Title 40:

§ 276a-2 (b) (Bonds of contractors for public buildings or works; rights of persons

furnishing labor and materials).

Compare with the last sentence of Equity Rule 37 (Parties Generally-Intervention). This rule amplifies and restates the present federal practice at law and in equity. For the practice in admiralty see Admiralty Rules 34 (How Third Party May Intervene) and 42 (Claims Against Proceeds in Registry). See generally Moore and Levi, Federal Intervention: I The Right to Intervene and Reorganization (1936), 45 Yale L. J. 565. Under the codes two types of intervention are provided, one for the recovery of specific real or personal property (2 Ohio Gen. Code Ann. (Page, 1926) § 11263; Wyo. Rev. Stat. Ann. (Courtright, 1931) § 89-522), and the other allowing intervention generally when the applicant has an interest in the matter in litigation (1 Colo. Stat. Ann. (1935) Code Civ. Proc. § 22; La. Code Pract. (Dart, 1932) Arts. 389-394; Utah Rev. Stat. Ann. (1933) § 104-3-24). The English intervention practice is based upon various rules and decisions and falls into the two categories of absolute right and discretionary right. For the absolute right see English Rules Under the Judicature Act (The Annual Practice, 1937) O. 12, r. 24 (admiralty), r. 25 (land), r. 23 (probate); O. 57, r. 12 (execution); J. A. (1925) §§ 181, 182, 183 (2) (divorce); In Re Metropolitan Amalgamated Estates, Ltd., (1912) 2 Ch. 497 (receivership); Wilson v. Church, 9 Ch. D. 552 (1878) (representative action). For the discretionary right see O. 16, r. 11 (non-joinder) and Re Fowler, 142 L. T. Jo. 94 (Ch. 1916), Vavasseur v. Krupp, 9 Ch. D. 351 (1878) (persons out of the jurisdiction).

Rule 25. Substitution of Parties.

Note to Subdivision (a). 1. The first paragraph of this rule is based upon Equity Rule 45 (Death of Party-Revivor) and U. S. C., Title 28, § 778 (Death of parties; substitution of executor or administrator). The scire facias procedure provided for in the statute cited is superseded and the writ is abolished by Rule 81 (b). Paragraph two states the content of U. S. C., Title 28, § 779 (Death of one of several plaintiffs or defendants). With these two para

graphs compare generally English Rules Under the Judicature Act (The Annual Practice, 1937) O. 17, r. r. 1–10.

2. This rule modifies U. S. C., Title 28, §§ 778 (Death of parties; substitution of executor or administrator), 779 (Death of one of several plaintiffs or defendants), and 780 (Survival of actions, suits, or proceedings, etc.) in so far as they differ from it.

Note to Subdivisions (b) and (c). These are a combination and adaptation of N. Y. C. P. A. (1937) § 83 and Calif. Code Civ. Proc. (Deering, 1937) § 385; see also 4 Nev. Comp. Laws (Hillyer, 1929) § 8561.

Note to Subdivision (d). With the first and last sentences compare U. S. C., Title 28, § 780 (Survival of actions, suits, or proceedings, etc.). With the second sentence of this subdivision compare Ex parte La Prade, 289 U. S. 444 (1933).

V. DEPOSITIONS AND DISCOVERY

Rule 26. Depositions Pending Action.

Note to Subdivision (a). This rule freely authorizes the taking of depositions under the same circumstances and by the same methods whether for the purpose of discovery or for the purpose of obtaining evidence. Many states have adopted this practice on account of its simplicity and effectiveness, safeguarding it by imposing such restrictions upon the subsequent use of the deposition at the trial or hearing as are deemed advisable. See Ark. Civ. Code (Crawford, 1934) §§ 606-607; Calif. Code Civ. Proc. (Deering, 1937) § 2021; 1 Colo. Stat. Ann. (1935) Code Civ. Proc. § 376; Idaho Code Ann. (1932) § 16–906; Ill. Rules of Pract., Rule 19 (Ill. Rev. Stat. (1937) ch. 110, § 259.19); Ill. Rev. Stat. (1937) ch. 51, § 24; 2 Ind. Stat. Ann. (Burns, 1933) §§ 21501, 2-1506; Ky. Codes (Carroll, 1932) Civ. Pract. § 557; 1 Mo. Rev. Stat. (1929) § 1753; 4 Mont. Rev. Codes Ann. (1935) § 10645; Neb. Comp. Stat. (1929) ch. 20, §§ 1246-7; 4 Nev. Comp. Laws (Hillyer, 1929) § 9001; 2 N. H. Pub. Laws (1926) ch. 337, § 1; N. C. Code Ann. (1935) § 1809; 2 N. D. Comp. Laws Ann. (1913) §§ 7889-7897; 2 Ohio Gen. Code Ann. (Page, 1926) §§ 11525-6; 1 Ore. Code Ann. (1930) tit. 9, § 1503; 1 S. D. Comp. Laws (1929) §§ 271316; Tex. Stat. (Vernon, 1928) arts. 3738, 3752, 3769; Utah Rev. Stat. Ann. (1933) § 104-51-7; Wash. Rules of Practice adopted by the Supreme Ct., Rule 8, 2 Wash. Rev. Stat. Ann. (Remmington, 1932) § 308-8; W. Va. Code (1931) ch. 57, art. 4, § 1. Compare Equity Rules 47 (Depositions-To be Taken in Exceptional Instances); 54 (Depositions Under Revised Statutes, Sections 863, 865, 866, 867-Cross-Examination); 58 (Discovery-Interrogatories-Inspection and Production of Documents-Admission of Execution or Genuineness).

This and subsequent rules incorporate, modify, and broaden the provisions for depositions under U. S. C., Title 28, §§ 639 (Depositions de bene esse; when and where taken; notice), 640 (Same; mode of taking), 641 (Same; transmission

« AnteriorContinuar »