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The argument which has been adduced here is based partly upon the assumption that these rules constitute a violent and radical departure from the procedure which has heretofore prevailed.
The argument is also based somewhat upon the fact that the Supreme Court has lost confidence in the members of the Bar. I will give two illustrations to demonstrate the fact that such is not the case.
There is a decision reported in the records of the Supreme Court to the effect that the clerk of a justice of the peace has no right to issue a summons, but that the summons must be issued by the justice of peace himself. Therefore, an attorney has not the right to issue a summons in a justice court. Furthermore, it has been the well recognized and established practice in all the Federal courts of the United States that the summons and subpoenas in equity in the Federal courts are issued by the clerks of those courts, and I have sometimes thought that perhaps the dignity of the Federal courts has been established and preserved by the very fact that the court has kept uniform its method of procedure in that respect, and has not delegated it to all the members of the Bar, but has kept such power in the clerk's office.
While I realize that some of the objections offered may have some weight, nevertheless I am inclined to think that the larger question and the ethics of the situation should control us in determining this matter.
I therefore move, Mr. President, that the motion be laid on the table.
Harry E. Kelly:
Mr. President, that is a motion which has never been entertained in this Association, and I for one strongly object to having anybody come into this Association and try to promulgate such a doctrine as that. That cuts off discussion.
If there is anyone else desires to speak I will withdraw the
The motion is not seconded.
Frank E. Gregg:
I was not here at the beginning of this discussion and do not know what form it has taken, except for this last resolution suggested by Mr. Kelly.
I am glad he has opposed the proposition that attorneys shall not have the right to issue summons. That has been a custom in a great many States for a great many years. Mr. Haines I do not believe referred to California, where that practice has been in effect for something over a quarter of a century.
I have been in the active practice in Denver for over twenty years and I may say that I have never known but a single case yet of abuse of process of that sort, such as has been mentioned. If it is such a crying evil, I should think a number of these attorneys would hear about it. It may happen in some cases, but point to me a single provision of the code the spirit of which has not at some time been violated by some attorneys.
Take the matter of executions even, there are often excessive levies for the purpose of oppressing someone.. In the matter of attachment, I have heard of many cases for the purpose of oppressing parties. I have not heard of any such thing in reference to the matter of summons.
I have in a great many cases issued my own summons, and in a great many cases these matters have been settled out of court. This procedure was not for the purpose of harrassing anybody, but it was done in that manner often because quick action could be taken, and again and again it has occurred that these matters
have been amicably settled out of court, but where settlement would not be made until it was known that suit was to be brought.
It has been suggested here that this procedure might be confined to those cases only where a defendant is about to leave the State. It seems to me that would leave the whole matter up in the air, so that the validity of the summons would depend upon who would swear strongest.
It seems to me that the present rule has been violated so little, and there are so many cases where its use is desirable, that the proposed rule should be changed. I do not look upon the fact that our views do not agree with theirs as a criticism of the court at all. I think, like others who are here, that we should express ourselves upon this proposition and if we are favorable to the old rule that it is proper for us to say so.
Alva B. Adams:
The Pueblo Bar passed a series of resolutions drafted by a committee of which I was a member. Among the resolutions was one asking the court to adopt this rule. I came here with the idea that those who opposed this rule were wrong. I have changed my mind. I have been convinced that the position which we took in our Bar Association was wrong on the matter of the issuance of summons. In my personal practice there has never been a summons issued from the office, so that I have had no personal experience. But we were impressed with the abuses.
However, after hearing Mr. Dunklee and some of the others I have been impressed with the instances where the right to issue summons is necessary. I am convinced that the Supreme Court paid no attention to our resolution in this matter anyway, because they so thoroughly ignored the other matters which we suggested! (Laughter.)
W. H. Gabbert:
We thought one was enough!
Alva B. Adams:
A suggestion concerning Mr. Morris' observation that the rules are approved because only one of them has up to this time been questioned. As I understand the debate has been upon this motion, and if the rules as a whole are open to discussion I am satisfied a number of other questions will be raised. I for one, was opposed to the adoption of the law giving the Supreme Court this power, and have had no occasion to change my mind.
I do not believe that the Supreme Court-with all due respect to the President is free from criticism, and it should expect to be criticised when it enters upon a legislative career. As a judicial body I would refrain from criticism, but when they draft laws and act as a legislative body on matters which affect those of us who are gathered here for the very purpose of discussing things which affect us, I think the matter should be discussed. If we disagree we should say so. And I am satisfied that the members of the Supreme Court are very glad and very willing to have us express our opinions, so far as those opinions are expressed fairly and honestly.
I think, to be a trifle candid, that the Supreme Court has had one matter in their minds a little closely, and that was the relief of the Supreme Court rather than the relief of lawyers outside. I will say this, that I believe that the motion as suggested ought to be passed with perhaps an amendment of the kind suggested by Judge Searcy. I believe that the amendment suggested by him would obviate to a considerable extent the abuses.
For the reasons which I have stated, I am going to vote for the motion as it stands, hoping that it may be amended to conform to Judge Searcy's suggestion.
John J. Hendrick:
The address of Mr. Nagel last night intimated that we are having too much legislation. We have not only had legislation by
the legislature, but now the Supreme Court, as suggested by my friend Mr. Adams, has gone into the legislative business.
Alva B. Adams:
They have amended certain laws.
John J. Hendrick:
There is one more thought which our worthy president mentioned which I think should not pass unnoticed. That was his suggestion that if this rule was not a good rule the Supreme Court would change it. Did you ever try to get the Supreme Court to change their minds? (Laughter.) They come back at you with res adjudicata and stare decisis and all that sort of thing. If you are going to change this rule, you better change it before it goes into effect. I do not understand it is in effect now. If it were, I would not be discussing it for fear I would be in contempt of the Supreme Court in criticizing its action.
I think this law is good enough the way it is; it suits me; it suits the members of our Bar. I think we ought to have a right
But I will say this, if this rule
to issue summons if we want to. does stand as adopted by the Supreme Court it will not be a rule long, because when they get off the bench they will want it repealed if they have any practice! (Applause.)
Harry C. Davis:
For one I am heartily in favor of this rule, and am bitterly opposed to any modification of it. I believe it has a tendency to surround a lawsuit with the dignity with which it should be surrounded.
In other words, we must prepare and file a complaint before we get a summons. Now, if we do our business right, by the time we have prepared the complaint we ought to know more about what our cause of action is, and whether we have a right to a summons than we should if we rush off and sign our name to a