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state of a title in the absence of any notice or other means of knowledge with respect to it.

The opinion, by Wheeler, C. J., is in terms rather carefully limited to the particular facts of the case, but its tone indicates a hopeful tendency to localize the effect of the six decisions already mentioned. As to those cases, it cannot be said that the result was necessarily wrong in each instance. It seems true, however, that the effect of their line of reasoning, and much of their dicta, is a weakening of the law of the Ward and Ryan cases.

In conclusion it would seem that the time has come to break away entirely from the archaic notion that an insurance company as such is to be regarded with suspicion. Whatever frauds are inherent in insurance transactions today are ordinarily not to be laid at the door of the companies, and a failure on the part of the courts to emphasize the inviolability of written contracts may quite conceivably contibute to increase fraud on the part of overzealous agents and under-scrupulous policy holders. In the words of the learned editor of L. R. A. 1915A, 280 the decisions criticized in this paper tend towards a rule, the adoption of which "in effect renders it impossible for the Insurance Company to know upon what basis policies are issued, or at least upon what basis they must be settled, since that knowledge rests exclusively in the bosom of a jury not yet impanelled". Connecticut originally led the way by the Ryan opinion towards what appears to be the correct rule of the Federal Court, and of an increasing number of State tribunals. It is to be hoped that our Supreme Court may feel that the effect of recent decisions may be so limited that the sound structure of law built up by earlier opinions may not be irretrievably impaired.

PROCEDURAL FUNDAMENTALS

*CHARLES E. CLARK.

The subject of this note may strike some with the reforming spirit as anomalous. Are there any fundamentals in pleading now that the day of the special pleader is past? Or are there any beyond the one that there should be none? Without attempting to answer these questions, we may note a basic problem of all procedural system:-how to develop rules which are definite enough to work and yet at the same time flexible enough to do justice in a particular case. The problem came before the Connecticut Supreme Court of Errors recently in a most striking fashion in New Haven Sand Blast Co. v. Dreisbach, 104 Conn. 322, 133 Atl. 99 (1926). The court in effect held that what should have been a new action could not be commenced by a written motion to extend the scope of a judgment in a former suit, and that written pleadings were a requisite to the jurisdiction of the court. The hesitancy of the court to act in so important a matter on such an informal presentation of the issues seems natural. It is desired, however, to consider briefly the somewhat far-reaching nature of the rules propounded in the opinion.

In the old days of the common law, the rules of pleading scemed often to exist merely that the practitioners of the science might demonstrate their skill. The reform movement directed towards this attitude is known to all lawyers. Perhaps everyone would now concede that rules of pleading exist simply as a means to an end and not as an end in themselves, or, as an able English judge said, as the "handmaid rather than the mis

*Professor Clark is a member of the faculty of the Yale School

of Law.

tress" of justice.1 Hence they find their justification only in their effectiveness in making easier and surer the application of the principles of substantive law. A five-yard penalty for too many forward passes in a football game may be sanctioned as making the game a better spectacle for the spectator. A procedural penalty can be supported only if it is a material aid in the better administration of justice.

Now the Connecticut Practice Act, adopted in 1880, has been universally conceded to have been one of the simplest and most effective of the so-called reformed codes. It was passed some time after the initial pleading reform in this country,-the Field Code adopted in New York in 1848-and even after the similar reform achieved in England by the Judicature Act of 1873. The experience of other jurisdictions was availed of to avoid many of the worst pitfalls of other codes. The result has been approved by many students of pleading reform generally, including David Dudley Field, the author of the original New York Code. The advantages of the Connecticut practice are illustrated by another Connecticut case, recently decided-Mirando v. Mirando, 104 Conn. 318, 132 Atl. 910, where the true combination of law and equity here achieved is shown in proceedings involving, in various aspects, equitable reformation, ejectment, and

1 Collins, M. R., in Re Coles (1907) 1 K. B. 4. See also Dunnett v. Thornton, 73 Conn. 1, 5, 46 Atl. 158 (1900); the address of Dean Roscoe Pound before the American Bar Association last summer, The Canons of Procedural Reform, 12 A. B. A. Jour. 541, 543 (1926); and the writer's article, History, Systems, and Functions of Pleading. 11 Va. L. R. 517, 542 (1925), reprinted in 5 Am. Law School Rev. 716, 729 (1926), and designed to constitute Chapter I of a book on Code Pleading to be published by the West Publishing Company, St. Paul, Minn.

2 Thus the New York courts, by a narrow, legalistic interpretation of the word "transaction," have greatly limited the extent of permissible joinder of causes of action. See De Wolf v. Abraham, 151 N. Y. 186, 45 N. E. 455 (1896); Ader v. Blau, 241 N. Y. 7, 148 N. E. 771, 41 A. L. R. 1216 (1925) and the writer's comment on the latter case in 35 Yale L. J. 85 (1925).

3 S. E. Baldwin, Pleading in Civil Actions, Two Centuries Growth of American Law, 313; also in 35 N. Y. St. Bar Ass'n Rep. 829; Hepburn, The Development of Code Pleading, 112, 113.

injunction as an aid to an action at law.* Such a result would even now be doubtful in many code states.5 It is in the light of these facts that the Sand Blast case should be considered.

The point presented in the case was most interesting. It had been held in a judgment affirmed on appeal that pursuant to a contract of assignment the defendant must transfer to the plaintiff, a corporation of which he had been president and general manager, his rights in a certain patent granted by the United States to him. Thereafter the plaintiff made a motion-in form at least as a part of the same case-that the defendant be compelled likewise to assign to the plaintiff certain English and Canadian patents covering the same invention, which, it was asserted, "the equity of the judgment" required that the plaintiff should receive. The judgment recited "that the parties stipulated in open court that the matter might be heard by oral argument, as on demurrer, admitting for the purpose of argument the allegations of fact contained in the motion and amendment, but questioning the legal sufficiency of facts so alleged, and the parties were thus at issue." The trial judge made some objection to the appropriateness of the procedure before him but held that since the foreign patents were not included in the original contract of assignment the plaintiff was not entitled to the transfer of such patents. On appeal, the court held in effect that instead of a judgment on the merits for the defendant, there should be merely a judgment that the present proceedings were improper, that is, a judgment in abatement. This is placed on the grounds that the question at issue could only be considered as a part of a

4 Here the complaint asked for reformation of a lease which was denied. The defendant claimed that since it was an equitable action for reformation such denial ended the case; but the court held that judgment for possession of that part of the premises to which the plaintiff was entitled, together with an injunction against interference therewith, might be given. See note 36 Yale L. Jour. 279 (1926). In Gaul v. Baker, 105 Conn. 80, 84, 134 Atl. 250 (1926), it is held that in an action for equitable relief no allegation of a lack of adequate remedy at law is necessary. For New York cases contra, see Note, 34 Yale L. Jour. 208 (1924) to Daly v. Sobieski, 204 N. Y. Supp. 546 (1924). 5 For New York cases holding that a complaint claiming equitable relief, where only legal relief should be given, is demurrable, see Poth v. Washington Sq. Church, 207 App. Div. 219, 201 N. Y. Supp. 776 (1923); Jackson v. Strong, 222 N. Y. 149, 118 N. E. 512 (1917) and the writer's article, The Union of Law and Equity, 25 Col. L. Rev. 1 (1925). 6 102 Conn. 169, 128 Atl. 320 (1924).

new suit, that a new suit could not be started by an informal motion, and that the oral demurrer constituted a jurisdictional defect since written pleadings are an essential to the validity of any judgment.

One may not be altogether sure just how far the court actually intends to go in its rulings; but it seems that a sharp distinction should be made between the actual result and certain of the principles stated in the opinion. That the informality of the proceedings prevented or hindered an adequate consideration of the issues involved is surely not an unreasonable conclusion. In fact it was somewhat the view of the trial judge. Had the decision been placed on this ground it would surely be beyond criticism. Yet the court apparently felt it necessary to give a general warning that such procedural informality would not be countenanced. It is submitted with deference, however, that the attempt to use a particular case as the vehicle for general admonitions to the bar is often of doubtful effect. Skill in pleading is not likely to be secured in this way, while formal and rigid requirements defeat the purpose of pleading which is the presentation of a particular case. Procedural rulings should be adopted to secure the best results in the case then at issue and must and should vary with circumstances. Moreover, general directions cannot be made effective unless accompanied with a threat of penalties for their violation, and courts will always and should always hesitate to apply drastic penalties to innocent litigants, who are not responsible for the lack of skill of their counsel.

If a general rule is to be declared in the present instance, is it that the proceedings are erroneous, subject to correction on direct attack, or is it that they are so wholly void that the resulting judg ment is a nullity even where only attacked collaterally? The

7 Since the trial court thought the plaintiff's claim not sound on the merits, it did not feel it necessary to pass on the procedure. Perhaps the fact that the Supreme Court did pass on the procedure may indicate a doubt which it has as to the correctness of this decision on the merits. Otherwise the trouble and expense of a new action merely to vindicate pleading rules is hardly worth while.

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