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President Dubbs:

You have heard the motion, gentlemen. Are there any remarks?

W. N. Searcy:

I rise to ask a question rather than to undertake to argue the matter.

The conditions down in our district are different from those in some other counties. I believe there that every country town is either a county-seat or very close to a county-seat, and closely connected, so that the difficulties recited by Mr. Dunklee for the outside towns of considerable size which are not county-seats do not exist in our district to any great extent.

In listening to arguments concerning the summons I have been wondering if the issuance of a summons to catch a defendant who is about to leave the county or the State is the sole necessity for an attorney issuing summons. If that is so it would seem to me that the whole thing might be covered by a simple proviso to this rule, for instance:

Provided, that the attorneys for the plaintiff may issue a summons under their own hand as heretofore under conditions where it is necessary so to do in order to serve a defendant who is about to leave the State or the jurisdiction of the court, and that thereafter they shall as promptly as possible file with the clerk of the court an affidavit setting forth the reasons why such service of summons by the attorney was necessary.

I am wondering whether that would not avoid the evil which has here been suggested, allowing the attorneys in that one circumstance to issue the summons, and requiring them subsequently and as soon as practicable to file an affidavit with the clerk of court showing why it was necessary.

Henry J. Hersey:

Mr. President, personally, in most instances I would prefer


to see the summons really a process, and if my memory serves me correctly, the Supreme Court long ago determined for this jurisdiction that a summons was not a process, and if we are going to simplify the notification to the defendant of the institution of a civil proceeding, we might take a short cut by telephone, unless we are going to have some definite method of reaching him and informing him and his counsel how and when he is served.

It seems to me that some of the objections made to this rule are well taken, and I think it is in every lawyer's practice sometimes found that there are emergencies when he wants to get quick action, and if he has to prepare and file a complaint before he can have a summons issued, either by himself or by the clerk of the proper court, he is going to be embarrassed and maybe his client's rights jeopardized.

I think the motion should be amended so that the Supreme Court can be asked to change the rule also to the extent of not making the filing of a complaint a prerequisite to the issuing of summons, whether by the clerk or by an attorney.

I also think that the rule is deficient, whether it stands practically as it is now, or is subsequently modified as proposed, if the Bar Association so recommends and the Supreme Court so decides, and I think it should be made mandatory that the summons with the return shall be filed in the proper clerk's office within a certain specified number of days after the service.

In passing, I will say that I am not in sympathy with the further rule as published that prohibits a motion to quash either a summons or a sci. fa. I think those are rights which ought to be preserved, and I do not think we are saving anything by not getting the defendant into court properly, and that the right to quash the service or quash the summons ought to be maintained.

I suggest, therefore, passing that point for the present, that the motion before the house be amended by adding the words wherever they properly come in:

And that the filing of complaint be not a prerequisite to the

issuance of summons and that the summons be returned and filed within ten days after the service thereof.

Harry E. Kelly:

With your permission, if I may interrupt now, I would like to have that stated as a part of my motion, to be incorporated at the end of my motion, if the Association will permit.

President Dubbs:

Mr. Hendrick, will you kindly take the chair?

(Mr. Hendrick took the chair.)

Henry A. Dubbs:

Gentlemen of the Association, I desire to be heard a few minutes on this motion. With all due respect to my very good friend, Mr. Kelly, who proposed it, I am opposed to it.

I do not propose to go into any discussion as to the particular merits or demerits of any phase of this argument. unquestionably true that something substantial can be said in favor of the right of an attorney to issue process. It is also true, and this truth has been demonstrated in the past more than the other can be in the future, because we are simply speaking of the future, it is also true that there have been abuses and very griev ous abuses, abuses which at times have brought the whole profession into disrepute, arising out of the right of an attorney to issue his own summons.

I am not going into these matters. Personally my own view is that attorneys should not have a right to issue a summons. That is my own arbitrary view.

The whole theory of the right of an attorney to issue a summons is of somewhat recent growth. It has taken root in certain States; it has been repudiated in other States.

Some suggestion was made as to the practice existing in New York, doing this and that and the other thing, and exchanging

papers. All that has been changed within the last two years, because very many features of it were found to be absolutely detrimental to the carrying on of public business.

The sum of the whole business is that speaking to the merits I am opposed to anything that leaves the procedure of our courts in the air. I want to know whether a lawsuit is in court or whether it is out of court. If it is in the lawyer's office and not in the court it is entirely unsatisfactory to me, and I think in the long run entirely unsatisfactory in the transaction of public business.

But, eliminating all those things, say that there is absolutely no merit in my own personal views, are not we crying before we are hurt?

We have asked the legislature to pass an act giving to the Supreme Court authority to do things looking to uniformity and simplification of the practice of our courts, and before the Supreme Court's rules have gone into effect, we are here saying we think this particular rule may work damage. If it does, the Supreme Court is going to change it. We have been working under the other procedure for a long time, and we are fearful something is going to be lost by this change. We admit that something very vital will be gained in doing away with these possible abuses. We think that from time to time and here and there rarely something would be lost. If something substantial is lost is not the Supreme Court going to come to that conclusion just as quickly as though we told them now of our fears as to the future?

These rules have been worked out carefully by the Supreme Court. I am frank to say in glancing over them there are some to which I have an off-hand objection, and that off-hand objection may or may not be well founded.

But even those to which I may have a sound technical objection may work out in practice after a few months, so that I will be very glad the change has been made. But the Supreme Court have had delegated to it this power, and I do not imagine for a minute that the Supreme Court has been oblivious to the argu

ments to be made on both sides of this question, but if it develops that under this rule, or under any other rule, some practical detriment is being worked, I have the most perfect confidence that the Supreme Court will appreciate that fact as quickly as any lawyer will appreciate it, and will make the change for the simplification and betterment of practice, and I for one am perfectly willing to say that even though I had a vital objection to that rule I would not vote for this resolution because I am very much in favor of standing by the Supreme Court in the promulgation and enforcement of this rule, and of all these rules, and telling the Supreme Court from time to time what objections we think have developed as the result of the practical application of the rules. I am perfectly willing to rely on the good judgment and good sense of the Supreme Court to make those changes which from time to time conditions demand, and without speaking of the ethics or good faith of the situation, I do not want to be a party to requesting the Supreme Court to make any change as to any rule that has not even gone into effect.

(President Dubbs resumed the chair.)

Ernest Morris:

It seems to me that this discussion really resolves itself into a compliment to the Supreme Court. The very fact that this particular rule has been singled out and is practically the only one against which any objection is voiced gives evidence to the fact that the Supreme Court has done its labor well and has done its labor thoroughly.

I know what difficulty we had in getting the law under which those rules were framed through the legislature. I know the objections that were made, and I know also the hesitancy which some of the judges of the Supreme Court had in assuming this additional burden, and it seems to me that we ought to stand by the court in the promulgation of these rules, and not put forward any objections at this time.

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