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always enjoyed and which is given in many States, they will consider those reasons and make the change, if, in their judgment, it ought to be made.
The only reason that I am speaking here, and that others will speak is this, that as lawyers we ought to stand up and tell the court and tell each other our reasons. How can we expect them to pay attention to these things if we sit quietly by while our rights are being taken away?
On the question of expense I do not think, as a rule, that amounts to very much. It would in some particular cases.
It must be remembered that sometimes we serve papers by someone other than the sheriff. I do not believe that is ever done to save expense. Occasionally a sheriff might not know the party, might not be able to find him or something of that sort, but the right and privilege to have the paper served by somebody other than the sheriff is a valuable right, and one which should not be taken away from us. But there is a class of cases where the item of expense would cut some figure. In some cases, this would amount to as much as a hundred dollars. Largely, of course, that is in irrigating cases, and matters of that sort. In Denver it costs fifty cents for every copy of summons that the clerk issues, which, in some cases, would amount of course to quite a sum.
But there is another phase to this question where the practice is really legitimate. If a case about to be commenced has real merit, I know as far as the business community is concerned, any firm which is doing business does not like to be sued in court. It may be that they have given a promissory note against which there is absolutely no defense, or there may be an account against which there can be no defense. I know that many of those business firms would very much prefer that a summons be handed to them instead of docketing the case first, and thereby hurting their credit with the different associations.
If the defendant actually owes the money and there is no defense to the action I can not see where it can be said it would be
blackmail or anything of that sort. I can not see but what a good purpose is served, not only to the legal profession, but to the courts and to the party, who has the privilege then of settling the matter, and never letting it get into court.
If there is any particular sinister motive or object, a fivedollar docket fee will never prevent the filing of certain suits, if that is the only barrier in the way.
And if blackmail can be said to be an industry which has grown up, the fact that you change the way of issuing summons will not stop it. That could be stopped by the Bar Association taking action to disbar such dishonorable attorneys. If they have anything worth while accomplishing they can file their complaint in court and they can proceed in the regular way and pay the little difference which there might be in expense.
There are other things which could be said which have not been mentioned, in defense of the right of attorneys to issue a summons, but I am satisfied that we as attorneys ought not to be deprived of this privilege.
And what do you think of the legal profession, some of it handling business of thousands and even hundreds of thousands of dollars for clients, handling their business and money and everything else, if it is to go out that our profession has so fallen in the estimation of men that we can not be trusted to issue a summons and the privilege must be taken away from us? That is a criticism that ought not to be true, and if it is true of some they should not be attorneys long.
I stand for correcting all abuses. Discipline any attorney who violates the privilege of issuing summonses. But I am sincerely asking on behalf of the legal profession and on behalf of the Bar Associations that the court shall take such action as will leave us this right, hedging it around with such reasonable authority as will prevent its abuse. (Applause.)
Charles H. Haines:
I want to second all that has been said by Mr. Dunklee. It seems to me the Supreme Court has made a mistake in adopting this rule. Judge Lunt has cautioned us not to criticize the court until we have read the rules. I have read them all with care, and I think the practice is greatly improved-wonderfully improvedby the rules as a whole.
This is the only rule I have found which it seems to me there is any occasion to change, or any necessity for changing. I should like very much to see this rule changed, not for any difference that it would make in my practice. In my practice of about ten years I have issued only about two or three summonses over my
There have been occasions, however, when it was necessary for me to issue summons and to get service in a hurry or lose the defendant, and in those cases I have issued the summons first and had it served before the defendant left the county. I recall no instance where he would have left the State. But it seems to me that this is a right which should be preserved to the attorneys. We are officers of the court, and ought to be trusted with this right. In some States, Illinois, for instance, I know the only way in which a summons can be issued is by the clerk of court, and it can be served only by the sheriffs.
In Iowa, on the other hand, actions are commenced by what is called an original notice, issued by an attorney, and there is another provision for the issuing of process to acquire jurisdiction in an ordinary civil action by the clerk of court.
In New York, as I understand, the practice is—I have had no experience there and have made no study of the statutesthat the case is never docketed in court until it is at issue. The attorneys exchange pleadings, the attorney issues his process or summons, or whatever it is called, and it is served, and the pleadings are exchanged, complaint, answer, replication, until the matter is at issue, and then it is docketed. I have not heard that
there is any complaint or abuse of the practice there, and I do not see why there should be. I do not see why in Colorado we can not at least permit attorneys to issue summons.
I know there have been abuses. Mr. Dunklee says he never heard of any such abuses. I have known one or two instances of serious abuse, and have heard of others. It seems to me that the broad right that is given by the present code provision ought to be limited. Sometimes an attorney may be compelled, because of haste, to issue summons. As a matter of practice, I think it is better to file your complaint and have the summons issued by the clerk and served by the sheriff when possible, but when the emergency justifies the attorney in issuing summons and in having it served, he should be required to file the summons with return of service within ten days after the service, and to file his complaint with it unless he can obtain a stipulation that will extend the time. If he fails to do that the court should not acquire jurisdiction under the service to enter any order except an order of dismissal without prejudice to renewing the action.
An attorney offending, by failing to file his summons within the time, should be further penalized by being made subject to a judgment for costs and attorney's fees. Under the rule which the Judiciary Committee of the Denver Bar Association presented to that Association it was recommended that $25.00 be fixed as such minimum fee. That is certainly not an unreasonable fee for an attorney to receive to go into court, and it is not an unreasonable penalty to place upon the offending attorney and his client who have desired to start an action so far as to issue and serve a summons, and have been so negligent that they have not filed their summons and return with their complaint in court in ten days.
Such a rule as that would practically insure the docketing of the case within time, because the attorneys would not issue and serve summons unless they intended to start their action.
I think the evil that has arisen under the present practice has
been that attorneys issue summons where they never intend to start a suit, and where the summons is issued only as a bluff. That is the conduct that should be prevented.
There is another sort of practice that is complained of. I have heard of one or two instances where an attorney would issue a summons in some such case as an action for alienating a wife's affections, a blackmailing action, pure and simple, in the hope that the defendant would settle, where there was by no means sufficient justification in the facts for him to file the case in court, and he did not intend to file it at all.
It seems to me that the right to issue summons is a valuable right, and one which attorneys should insist on having saved to them. Nearly every practitioner in the course of fifteen or twenty years or more-I have not had that much experience myself, but I just suggest that as an example-must have in one or two instances cases where he is obliged to get a quick service, and he ought to have the right to issue summons in such an emergency, and I think this Association should take some action to indicate that we as an association feel that the rule which the court has adopted should be changed so as to save the right to attorneys to issue summons, under proper safeguards, and an appropriate committee should be instructed to communicate the opinion of the Association to the Supreme Court.
Harry E. Kelly:
In order to bring this matter before the Association I make the following motion:
That the Executive Committee is hereby instructed to represent to the Supreme Court the preference of this Association that summons may be issued by attorneys under suitable provisions to prevent the misuse of this power.
George F. Dunklee:
I second the motion.