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very few exceptions, to prepare a complaint and get a summons in the regular way. While I agree with the last speaker, I am going to say once more that the dignity that it fends to a lawsuit by far overcomes every disadvantage that may come in isolated instances by reason of the attorney not having authority to issue the summons.
Robert S. Gast:
My specific question was whether or not you can think of any abuse that might be made under the Denver substitute.
J. W. Preston:
It seems to me that we are agitating ourselves over a very small matter. If the right on the part of attorneys to issue one character of process is of such great importance as to elicit all this discussion, then it seems to me that the rule which we should ask to have promulgated by the court should allow attorneys to issue subpoenas, writs of attachment, and process of that character, which in itself would require emergency use more than the issuance of summons. The writ of attachment certainly is one that would require emergency use more than a summons, and I can see where the issuance of subpoenas would call for such use.
It seems to me that the matter is not one of whether there are or are not abuses. Personally, in voting in favor of the resolution which was adopted by the Pueblo Bar Association. I did not do it with any particular abuse of the privilege in my mind, but rather with the idea that no process ought to be issued except from the court.
Robert G. Strong:
Under the rule proposed by the Supreme Court it would be possible with the consent of the local judges in the outside districts, where there are good sized towns or cities having a number of attorneys outside of the county-seat, to arrange with the
clerk to have a deputy solely for the purpose of issuing summons when requested by these local attorneys in such locality. Perhaps there might be a questionable matter as to procedure whether the seal could be properly appended at the county-seat and forwarded to the local deputy, one or two or three at a time, for use in filling up a summons. But certainly that method, until it were successfully attacked, would solve the question of getting the summons from the county-seat.
Benjamin C. Hilliard:
It seems to me, Mr. President, that we lose sight of the fact that the plaintiff side is only one-half of the litigation. Almost anybody can start a lawsuit. The really great lawyers are employed to defend! (Laughter.) I may say parenthetically, I start very few suits! (Laughter.)
I think it is hardly fair to say that the legislature exhausted all its wisdom when it adopted the code which permits attorneys to issue summons, for in the exercise of that continuing wisdom and discretion with which it is provided it passed a new law delegating to the Supreme Court the power to make new rules calculated to simplify, and, I think, to dignify the practice.
I believe that the rule as announced by the Supreme Court is all right. I am not persuaded, as is my brother Adams, by what has been said here, that it is necessary for lawyers to issue summons. There are not many suits that must be started in such haste, and I think ordinarily they exist only in the imagination of the client who is in a feverish hurry, or in the notion of some attorney who has not altogether the most dignified idea of his own place in the community. Lawyers do fill a public place; they are public officials. They must have some dignity; they must be honorable and high-minded, else they are not attorneys at all. Starting suits ought to be the last office of an attorney; litigation is not to be encouraged. We are not supposed to hurry into court and start something going that will astound the community,
but we are supposed to be wise in counsel, to judge our clients somewhat and to counsel that they go slowly and not hasten into court, and when we add to that, which ought to be done, the thought that we need not even wait for the court to be open, only that the clerk's office have its doors unlocked, until we can start on a voyage of litigation, it seems to me the rule which the Supreme Court has well made ought to be sustained by this Bar.
Edward S. Worrell Jr.:
Gentlemen, might I suggest right here that we are getting pretty well into the day and we have considerable business to transact. Mr. Worrell has not spoken, and the chair will recog nize him, but after the recognition of Mr. Worrell I wish to ask the Association whether this debate shall continue, or whether Judge Lunt, who made the report, shall then be permitted to close the debate?
Edward S. Worrell Jr.:
I just wanted to hasten to admit that I usually represent the defense! (Laughter.) I also want to say to my friend, John R. Smith, if he does not think there is any dignity in a lawsuit he wants to go into Judge Butler's division and ask for thirty days' time to answer! (Laughter.)
I am in favor of the rule as promulgated by the Supreme Court. I think it will do a great deal of good. It will certainly eliminate the abuses which most of us know have existed. We can try it, and I think that if any of us find that this rule has repealed our legal education or our practice, the Supreme Court will help us out and make another rule later on.
Gentlemen, shall the debate now close, with the remarks of Judge Lunt?
Horace G. Lunt:
Mr. Chairman, I only desire one word with which to close the discussion. The Supreme Court has not acted hastily in this matter, as I happen to know. There are about a hundred lawyers here, and I judge from what was said there must have been about thirty in Denver, and many of those who were in Denver are now here, but suddenly we oppose the initiation of this rule. The Supreme Court asked the advice of the Ear throughout the State, and they got it to the Queen's taste, on about everything.
Among others, this was one of the principal objections that they received, and one of the principal changes they were asked to make. Of course Pueblo County changes very rapidly somehow or other, but they were right in the first instance, and the Bar throughout the State has said to the Supreme Court, this is one of the objections that we think you ought to overcome by your rules, and they have done it. I believe the new rule is a good one, and ought to stand. Each one of us may think something may be improved, but the code as it stands now has been abused, though several have stated that they did not know anything about such abuses. I do. I do. I know of such abuses, knowledge of which came to me when I was on the bench, and also since. From inquiry in Denver I know that there are many abuses there made of this rule.
The rule as it is now drafted is certainly beneficial, and I think we should give it a trial, because, thank God, there is no legislature which we have to go to now to have these changes made, but we can go to the Supreme Court, and they will make
necessary changes, but it is idle for anyone to say now that this court is legislating, and I can see that in a few years from now you will be thankful that you have a Supreme Court which can make changes in the rules as necessary.
Mr. Kelly, will you now restate your resolution?
Harry E. Kelly:
I move that the Executive Committee of this Association be and is hereby instructed to represent to the Supreme Court the preference of this Association that summons may be issued by attorneys and that complaints may be thereafter filed under suitable provisions, to prevent the misuse of this power.
Was there some suggestion by Mr. Hersey as to time of filing complaint?
Henry J. Hersey:
The amendment which I would suggest is this, that the filing of a complaint be not a prerequisite to the issuance of a summons, and that the summons be returned to the files within ten days after the service thereof.
Harry E. Kelly:
As to the number of days I preferred leaving that to the Supreme Court. I am just expressing a sentiment here.
Gentlemen, you have heard the resolution.
The resolution was here duly put, and on rising vote was carried, twenty-nine to twenty-five.