« ZurückWeiter »
summons before we have prepared a complaint on the cause of action. I believe it lends to a lawsuit that dignity which a lawsuit is entitled to have.
It might work injury to me, because I believe it makes good lawyers better and possibly the other kind of lawyers less popular. I have seen what to my mind are the most bitter abuses of this practice as it has existed in the past. I have known attorneys to juggle by stipulations what I consider jurisdictional facts. I may be wrong, but I believe that under our present practice there are jurisdictional questions, and I think that the complaint must be filed within a certain time after the summons is issued or it is a jurisdictional defect.
I have had case after case where attorneys would issue summons in what we might call a personal injury case or something of that kind-alienation suits, collection suits, or the like. But I am going to refer to them as collection suits. Summons would be issued and they would serve it upon a defendant and then follow that right up by a stipulation to the effect that the complaint need not be filed, and the case need not be docketed, but it shall not be dismissed by the defendant for failure to docket, so long as the defendant pays the stipulated sum of $5.00 or $10.00 a month on account of the debt.
Now, I think that is juggling by stipulation with jurisdic tion. Such a suit may hang over a defendant's head indefinitely I do not believe that is a valid stipulation, or that it would be permitted by the court, but nevertheless, that is done day after day by lots of attorneys in cases in which I happen to have been called upon to defend, or consulted with in reference to.
I say all of those things reflect upon the dignity of a law suit, and that if we are compelled to prepare the complaint before we may have a summons issued we will know more about our cause of action, and many alienation suits, suits for personal in juries and collection cases will be avoided, because of the fact that he will feel in such a suit that he must go into court and file
a complaint before he can make a proposition to the defendant in compromise or to settle the case.
It is almost questionable whether a lawyer, unless he is extremely careful, ought to attempt, at least in the absence of a lawyer having been retained to represent the defendant, to start in to compromise or adjust an alienation suit or personal damage suit with the defendant before the case has been filed in court.
Harry E. Kelly:
If any assurance is needed I desire to give it, although I do not assume that any is needed, that every lawyer in the State of Colorado is opposed to the practices which Mr. Davis has denounced.
I am opposed to them certainly. I think that a lawyer who resorts to practices of that sort ought to be disbarred.
No man, I think, can exceed me in erecting a standard of morals for the members of the Bar of this State. I will put it as high as anybody. In my practice I think I am borne out in making the statement that it is as high as any man's, whether in pri vate practice or in public office. I resent the insinuation that has occurred in opposition to this motion by some of the speakers, that necessarily opposition to the rules of court as announced must be attended by some ulterior motive.
Let us see what the situation is. By an act of the legislature of this State the right to issue summons was given to attorneys. Certainly the existence of the act, long practice under it, and adherence to the principle count for something. They count for this much, that to induce us to abandon that system some argument ought to be made which is forcible against the continuation of it.
What is the argument? It is that the right to issue a summons by a lawyer has been abused in some cases, under the system of issuing summons which is now in vogue.
I admit this privilege has been abused, and I stand for a change in the system as we now have it. That is a disgrace. I agree there ought to be a limit to the time when a man after issuing a summons can come in and file a complaint, and those limitations are contemplated in the motion which I have made. The changes from the present situation which are desirable are contemplated by my motion.
The argument in opposition to my motion, to which I have called attention, I think, is avoided absolutely by this fact, and if I may digress I will say this with regard to nearly all the law on the statute books-which a public officer very soon finds to be the truth-that you need the law, or the great majority of it, for one-thousandth of the population. Nine hundred and ninety-nine people out of a thousand desire to do right and desire to promote moral conduct every where.
But because an infinitesimal part of the Bar misuses this right to issue a summons does not justfy a change of procedure for the purpose of regulating that one-thousandth of the population.
There have been a few abuses. There is no doubt in my mind that they can be avoided absolutely. If they can be avoided, why not avoid the abuse and allow to stand the main rule, namely, that under certain circumstances, which the Supreme Court might designate, summons may be issued and a complaint afterwards filed by the attorney for the plaintiff. Why should we say to the Bar of this State that because three or four members of the Barwho are probably not members of this Association-why should we say that the whole Bar shall be incommoded by three or four lawyers who misuse the process of the courts? Why, the right to appear in court at all is abused. The right to file a suit is abused. The right to sit on the bench and conduct a case has been abused. I will not assume that the occasional abuse of a thing of that sort is a sufficient ground for changing the policy which was established by the legislature, and which has been used successfully by the Bar, save in a very few instances.
So my answer to the argument is that the abuses that have been named may be avoided, and then the argument in favor of the present rule of the Supreme Court falls, and the practice heretofore in vogue is thereby supported.
John R. Smith:
I am heartily in favor of Mr. Kelly's motion, and I think it ought to be made as emphatic as it can properly be made as an expression of opinion of this Association to the Supreme Court with respect to this rule.
I can recall but very few instances when I have wanted to issue a summons, or have had one issued in my office, but as I recall them, when I did deem it necessary to do it, it was an exigency and there was no harm done and benefit was accomplished. This right to my mind is a good deal like the right of carrying a gun. You may not want it very often, but when you do want it you want it badly. I think that is the experience which the Bar has had with respect to the exercise of this right, as to the great majority of the members of our profession.
I do not agree with Mr. Davis' idea at all, about the dignity of a lawsuit. I have never seen in a good many years' experience anything very much to be proud of on the part of anybody with respect to lawsuits! (Laughter.) They are just a way of getting the business of a community done. So far as the Bar is concerned, I do not believe that they occupy any plane of dignity at all or anything of that kind. When a man wants you to bring a lawsuit for him the sole purpose of it is the fruits which may be realized. I do not think this rule ought to have been adopted by the Supreme Court, and I think it came like a surprise.
The rule ought not to have been announced, in my opinion, and it ought not to be adhered to, and I think our expression here about it ought to be clear and definite enough so that if we can not change it now at least we will lay the foundation for a more radical and vigorous appeal to the Supreme Court in the future to change it.
Robert S. Gast:
It occurs to me that the discussion may be narrowed and the argument to advantage focused by the asking and answering of a question. Of course all the Supreme Court had in mind in the promulgation of this rule and all the Bar of Pueblo had in mind was the doing away with abuses with which we have all had more or less experience.
Now, if those abuses may be guarded against without unduly depriving the profession and its clientele of its privileges and rights which in emergencies are valuable and sometimes necessary, it seems to me that everybody ought to be satisfied-except possibly, the President (laughter). The answer to this question may solve the difficult. I would like to ask Mr. Davis if from the substituted rule offered by the Denver Bar Association be stricken the provision permitting the extension by stipulation of the time within which summons may be filed that would not obviate the possibility of abuses which we all, and Mr. Davis especially, fear?
Harry C. Davis:
I think it would greatly improve the situation, but I do not believe it would give anywhere near the beneficent results that the present rule adopted by the Supreme Court would bring about.
We have all had occasion possibly once or twice in our practice when the defendant came in from another State and was going to leave on the next train. We possibly could not prepare a complaint in time to get a summons and have it served. But those are very extreme cases. I think Judge Searcy's suggestion would overcome that more perfectly than any other. But I do not know of an instance when I could not in my own personal affairs have prepared a complaint and got the summons from the court. Perhaps I should not say that because that would not necessarily mean very much. But if we have prepared our lawsuits, as we ought to, in advance, we have always had time, with