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seven months to a year before an equity cause can be reached for trial after being placed upon the trial calendar. This is particularly significant in view of the fact that the working conditions and efficiency of the clerk's office have been vastly improved in this district, owing to its having recently been thoroughly systematized, thus reducing to a minimum the detail work of the judges.
No one unfamiliar with the actual conditions existing in the United States courts can realize the tremendous load which the federal judges are carrying in their endeavor to give litigants and the public generally prompt action in the various matters brought before them, for, with the ever-increasing load which is being placed upon the federal judges by Congress, and the additional work imposed by the new Equity Rules of taking the evidence of witnesses open court, little gain on the court calendars has been made in various of the districts. This is true in New York, despite the fact that so extensive an advantage has been taken of the amendment to Chap. I, Sec. 18 of the Judicial Code. It would seem that resort must necessarily be had to the practice of either referring equity cases to an examiner or master, and have the causes submitted to the court on printed records, briefs and final argument, or that additional judges be appointed to secure a more speedy determination of these causes.
The clearing of the calendars in some of the districts is much more largely due to the energy, hard and prompt work of the judges themselves than to any change in the practice.
If either party insists, the courts generally will order the testimony of all of the witnesses within their jurisdiction to be taken in open court, although some of the federal judges in certain districts where there is a large amount of business (and there is no provision under the statutes for allowing judges from other circuits to be called in, as in the Second Circuit) have ordered that the evidence in some cases (such as patent cases involving intricate mechanical or electrical problems) be taken before a master or an examiner, particularly if agreed to by the parties, on the theory that such a cause is an exceptional one under the rules. By adopting this procedure, the calendars of these courts have been somewhat relieved of congestion.
7 Act of October 13, 1913.
Perhaps the most striking result accomplished by taking the testimony of witnesses orally in open court under the new rules has been to cut down materially or eliminate the testimony of socalled expert witnesses who have no particular qualifications to testify as such. While this has effected a small saving to litigants, it has increased the operating expenses of some of the courts and has otherwise affected the conditions of the court calendars generally to such an extent as to counteract materially the benefits gained.
The new rules have also served as an impetus, to the courts and attorneys alike, toward eliminating from the court calendars all except live and active cases. Various plans have been tried by the different judges for insuring the trial of cases when they are called on the calendar under the local rules, and these are in some instances securing beneficial results. For instance, in the Eastern District of Michigan, both the law and equity calendars were heavily overloaded, there being something in excess of two thousand cases on these calendars, and, as the same judge sat in both kinds of cases, it was with difficulty that a trial of an equity case could be had within any reasonable time. By the procedure there adopted, a bulletin is placed in the courtroom, on which appears each week a list of cases to be reached that week, and when they are reached on the schedule, made up largely under local rules (generally and colloquially known in Michigan as the "Eleven Commandments"), they are tried or stricken from the calendar. The court in this way secures the result of having cases to try, and being able to dispose of them, when the time fixed arrives. This means that the court moves the active cases along and disposes of them, instead of spending a large amount of time in going over old cases in which the issues are dead or dying. The court, by insisting that the causes be tried when reached, or else be stricken from the calendar, has reduced the number of pending cases so that in February of this year there were about one hundred and twenty-five cases pending on both calendars. This illustrates in a general way the situation in other districts.
In Chicago there is a call of the pending cases which have been on the calendar for more than a year, at certain dates announced in advance; the cases which are not ready for trial and in which
there is no showing made for a continuance are dropped from the calendar, to be reinstated only upon a proper showing, and because of the failure of such showing, in a large number of cases, they are permanently disposed of in this manner.
In view of the numerous decisions under these rules during the second year of their existence, and of the mode of applying them, I shall make mention, so far as possible, of any specific rulings effective in different circuits not common to all, and refer to each rule upon which there is a reported decision since they were enacted, and shall give as complete a list of all the decisions under each of the rules, both reported and unreported, as I have been able to obtain.
The rule relative to the keeping of various books in the clerk's office is not strictly adhered to in the different districts, nor can counsel rely upon his receiving the notice required to be given of orders entered in his absence.10 He must be upon constant inquiry to ascertain what orders are being entered in pending cases. In numerous districts the clerks, under the direction of the court, refuse to file pro confesso decrees except upon notice to the adverse party, notwithstanding the rules."1
Under the rule relating to the enforcement of final decrees the question of validity of a particular decree was raised on the ground that it did not specifically provide for a writ of execution. The court, in liberally interpreting this rule, held the decree valid, and says that such recital is immaterial "because the general rules in equity provide that when the judgment is for the payment of money only it shall be enforced by writ of execution." 13
The rule 14 relative to a decree for "deficiency in foreclosures, etc." has been considered in maintaining the jurisdiction of the court.15
The rule requiring an answer to be filed within twenty days after the subpoena is served, and for a default and decree pro confesso,
• Federal Equity Rule 3.
10 Under Federal Equity Rule 4.
"Federal Equity Rules 5, 12, 16 and 17.
12 Federal Equity Rule 8.
13 Richards v. Harrison, 218 Fed. 134, 137 (1914).
14 Federal Equity Rule 10.
15 St. Louis, I. M. & S. Ry. Co. v. Bellamy, 211 Fed. 172, 180 (1914).
in the event the answer is not filed within this time and no extension is had from the court enlarging it,16 has generally been liberally interpreted, and the defendant permitted to plead such defenses as are available to him, even though the answer is not filed within the time specified. These cases are unreported. In one case the defendant was held strictly to the time prescribed by the rule. As the Court of Appeals affirmed this ruling,17 counsel for defendant must be exceedingly prompt in getting his answer on file, specifically setting up all of the defenses upon which he intends to rely. Failure to do this, or to secure an order in advance from the District Court, extending the time for answering, may be disastrous, as this is treated as within the discretion of the District Court.
The courts have incidentally referred to the rule 18 abolishing technical forms of pleading. Some courts are very liberal in their interpretation of the rule permitting amendments generally in the furtherance of justice, and at every stage of the proceeding are disregarding "any error or defect in the proceedings which does not affect the substantial rights of the parties." But others have been very strict and have refused to admit amendments, even upon terms. In some unreported patent causes, where a defendant has either been unable to secure, or failed to set up in his original answer, the anticipating devices upon which he must rely to substantiate his claims of non-infringement, or invalidity of a patent, courts have refused to permit such amendments setting up new defenses, while in others the courts have permitted such amendments, even on the day of trial. This demonstrates the necessity of using the utmost diligence and caution in getting all pertinent matter before the court at the outset, even though the rule under discussion itself indicates liberality and reported decisions are to the same effect.
The courts in the reported decisions 19 hold that "technical errors are to be disregarded," and have stated that this rule but
16 Federal Equity Rule 12.
17 Board of Levee Com'rs v. Tensas Delta Land Co., 204 Fed. 736 (1913).
18 Federal Equity Rule 18; Acme Steel Goods Co. v. American Metal Fasteners Co., 206 Fed. 478 (1913); Sheeler v. Alexander, 211 Fed. 544 (1913).
19 Marconi Wireless Telegraph Co. v. National Electric Signaling Co., 206 Fed. 295 (1913); Gaumont v. Hatch, 208 Fed. 378 (1913); Sheeler v. Alexander, 211 Fed. 544 (1913); Williams v. Pope, 215 Fed. 1000 (1914).
"expresses the conclusion to which courts of equity had arrived before the adoption of the rule." 20
Further and particular statements in pleadings may be required under the rules,21 but exceptions to bills, answers and other proceedings for scandal or impertinence no longer obtain. While this matter may be stricken by the court upon such terms as it sees fit, under the rules, the courts are reluctant to strike such matters; but when stricken under an order of the trial court, this cannot be corrected by mandamus or certiorari when an appeal lies on the whole controversy.2
The transfer of an action at law, erroneously begun as a suit in equity, is now readily accomplished, and the rules applicable have saved time and expense to litigants, without counterbalancing difficulties.
By the Act of March 3, 1915, there was added after Section 274 of the Judicial Code three new sections, No. 274A, 274B and 274C, dealing particularly with the question of procedure in case a suit at law should have been brought in equity, or a suit in equity should have been brought at law. (Federal Statutes, Annotated, April, 1915, Pamphlet Supplement No. 2, p. 35.)
Judge Dickinson, of the Eastern District of Pennsylvania, well states the general tendency of the courts in this regard, while considering a motion to dismiss a certain cause for want of equity on the ground that the plaintiff had an adequate remedy at law, when he said, "Rule 22 expressly provides what shall be done at pears' that the suit should have been brought at law. Rule 23 commands us not to dismiss a bill on this ground. The case may be proceeded with, and when it appears, if it does develop, that this case should be tried at law and the amount of damages assessed by the verdict of a jury, this may be done." 24
'any time it apMore than this,
20 Medical Society of So. Car. v. Gilbreth, 208 Fed. 899, 926 (1913).
21 Federal Equity Rule 20. Williams. Pope, 215 Fed. 1000 (1914); Maxwell Steel Vault Co. v. National Casket Co., 205 Fed. 515 (1913).
Federal Equity Rule 21; Williams v. Pope, 215 Fed. 1000 (1914); Lovell-McCon nell Mfg. Co. v. Bindrim, 219 Fed. 533 (1914).
23 Federal Equity Rules 22 and 23.
For exception see Goshen Mfg. Co. v. Myers Mfg. Co., 215 Fed. 594 (1914), now pending on writ of certiorari in the United States Supreme Court; Linden Inv. Co. . Honstain Bros. Co., 221 Fed. 178 (1915).
24 Goldschmidt Thermit Co. v. Primos Chemical Co., 216 Fed. 382, 383 (1914). See also: Cubbins v. Miss. River Commission, 204 Fed. 299 (1913); Heckscher v.