6 : i; 2; UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Drafting Court Motions and Orders Modern American Law Lecture Blackstone Institute, Chicago BY HENRY H. INGERSOLL, M.A., LL.D. One of a Series of Lectures Especially Prepared for the Blackstone Institute BLACKSTONE INSTITUTE CHICAGO Copyright, 1920, by Blackstone Institute T HENRY H. INGEESOLL The death of Mr. Ingersoll in April, 1915, de- prived the American Bar of one of its most bril- liant members and the state of Tennessee of one of her foremost citizens. His long career as a lawyer, statesman and educator has made his name familiar throughout the United States. He was born in Oberlin, Ohio, January 20, 1844. He attended Oberlin College and graduated from Yale University in 1863. He studied law in Cin- cinnati and was admitted to the Tennessee bar in 1865. For a number of years Mr. Ingersoll was Assist- ant Attorney General of the State of Tennessee and in 1879 was appointed a judge of the Supreme Court of the state, serving in that capacity until 1880. In 1884 he was appointed a special judge of the Supreme Court. He acted as Dean of the Law Faculty of the University of Tennessee from 1891 up to the time of his death, and his faithful service and scholarly mind made the school one of the foremost educational institutions in the South. Mr. Ingersoll has occupied many positions of honor and trust. In 1887 and 1888 he was Presi- dent of the Tennessee State Bar Association, and from 1907 to 1912 was Vice-President of the Ameri- can Bar Association. Besides acting as Dean of the University of Tennessee Law School, he was appointed a Trustee of Emory and Henry College and the University of the South. Probably Mr. Ingersoll will be best remembered as an author. He edited "Barton's Suits in Equity"; was the author of "Ingersoll on Public Corporations"; "Municipal Corporations" and "Towns" in Cyc and "Law of Municipal Corpo- rations" in Modern American Law. An experience of fifty years in the legal profes- sion makes Mr. Ingersoll 's writings of intense inter- est to the student of law. His untarnished reputa- tion on the bench, his scholarly accomplishments, and his devotion to the profession which he made his life 's work furnish an illustrious example to the student who aspires to the highest standards of citizenship. s By HENRY H. INGERSOLL, M.A., LL.D. Motions and orders are not necessary parts of a proceeding at law or in equity ; they are merely inci- dental, but very useful. By this you understand that a lawsuit may be brought, conducted and concluded without either a motion or an order, and many have been so brought, conducted and disposed of. But this is not common the records of most equity suits show motions and orders. Such things are the mere inci- dents of a lawsuit; some suits show them and some do not. MOTIONS A motion is an application to a court or judge for some order to be made in the case which will facili- tate its progress or disposition. Motions are usually oral and made in open court. If made to a judge, and not in open court, they are usually in writing and upon notice. In such case they closely resemble petitions, and serve much the same purposes in prac- tice. They are commonly regulated by statute or by rule of court. In various states the practice in regard to them is quite different, so that before a lawyer enters upon 5 6 MODERN AMERICAN LAW LECTURE the delicate business of making motions in a cause in court he must needs be familiar with the rules which govern their making and disposition, else he will be liable to false steps and failures. There are, however, certain general rules of practice known to the common law and observed in nearly all courts, which are not generally regulated and controlled by statutory or judicial rules of procedure; and these will be the subject of this Lecture. Motions are made by attorneys for plaintiffs when they desire some permission or privilege or right which does not come necessarily in the regular course of the procedure in a case, as for example: When an amendment is needed either in the process or pleading ; or when alias process is needed ; or a guard- ian ad litem; or a judgment by default; or an attach- ment ; or an order of reference ; or any other step in the progress of a case which will remedy defects, im- prove the form or substance, or expedite the trial or final disposition of the case. So also motions may be made by attorneys for de- fendants for any appropriate order or step which they think will aid them in making or perfecting their defense, as for example : A motion to dismiss the plaintiff's suit because he has given no bond for costs ; or because the bond given is insufficient ; or be- cause the court has no jurisdiction either of the de- fendant or the subject matter of the suit ; or because the plaintiff is not competent to sue, by reason of marriage or non-age ; or because plaintiff has not filed his declaration or petition in due time; or because process has not been duly served upon defendant; DRAFTING COURT MOTIONS AND ORDERS 7 or motion for further time to be allowed defendant in which to answer or make defense. These will suffice to illustrate the steps which may be taken by plaintiff or defendant by motion, it being understood that, when either party wishes some or- der made which does not come in due and regular course of procedure, the motion is the proper method to bring it to the attention of the court and obtain the order desired. If the matter upon which the party applying for the order bases his application or motion appears already in the record or papers in the case, no fur- ther showing is needed as the basis of the motion, as for example : If the amount sued for is so small as to be beneath the dignity of the court; or is a tract of land outside the state where the court is held; or the papers fail to show any cost-bond or any declara- tion or petition filed, the defendant may make his motion without any additional showing ; and so like- wise may plaintiff enter a motion where the defend- ant has been served with process and has failed to appear or answer in due time. But where the basis of fact, upon which either party makes a motion or asks an order from the court, does not appear in the record or papers of the case, then an affidavit is nec- essary, so that it may appear to the court prima facie that there is a basis of fact on which to rest the order desired. For example : Plaintiff has brought a suit for partition of a farm against his brother and sister; and, after lapse of time within which regularly he should have made application to amend, he learns that his sister has 8 MODERN AMERICAN LAW LECTURE married, and his brother has conveyed one-half of his interest to a stranger. It becomes necessary for him to make the stranger and the husband both additional parties defendant to his suit, and he must make affi- davit of these facts as newly discovered so as to ob- tain the desired order for process necessary to bring the husband and the stranger before the court. Or, suppose that defendant wishes to question the authority of plaintiff to sue because she is a married woman, or a minor, and therefore, moves to dismiss the case ; he must file an affidavit of the fact of non- age and marriage as the basis of his motion, so that the court may have prima facie evidence of the facts necessary for the desired order. And so, also, if the defendant moves for better security on the cost bond, he must file an affidavit of the insolvency or insuffi- ciency of the present surety. And so in every case, the party, either plaintiff or defendant, asking an order of the court because of matter dehors the rec- ord must make this essential matter apparent by af- fidavit. Among the motions commonly made on behalf of plaintiff are : (1) Such as are necessary to bring the defendant before the court for an alias summons or a judicial attachment, or such other process as the state allows for that purpose. (2) Motion to correct or perfect pleadings, as, to amend a declaration or petition, or to file an amended or supplemental declar- ation or petition. (3) Motion to produce an issue, as, for a judgment by default ; or for a guardian ad lit em ; or for an order on defendant to answer, or to have a case revived against the representative of the defend- DRAFTING COURT MOTIONS AND ORDERS 9 ant who has died pending suit. (4) To prepare the case for trial, as, to strike some improper pleading from the file, or to compel the defendant to answer certain specific written interrogatories duly filed in the case. (5) To protect or enforce rights pending suit; as, motion for an injunction or a restraining order; for a receiver, or for alimony; or for an at- tachment for the person; or for any other order or step necessary or proper to improve or correct the process or pleadings in the case, to expedite the trial, or to protect the property or rights of the plaintiff. Many orders may become proper or necessary for defendant in the progress of a case, such as : (1) Mo- tions looking to the dismissal of the suit; for exam- ple: motions to require plaintiff's attorney to show his authority for bringing suit. (2) Motion for a better prosecution bond; motion to dispauper the plaintiff; motion to require plaintiff to take neces- sary steps for his suit ; motion to dismiss the suit, or to abate it, in case of the death of plaintiff. (3) Mo- tions to improve or perfect defects ; as, motion to re- quire plaintiff to elect between this and another suit for the same purpose; motion for time to make an- swer or defense; motion for leave to withdraw a pleading ; or to file an additional pleading ; or to set up a cross-action by way of defense ; motion to allow a wife to answer separately from her husband; mo- tion to strike pleadings from the file because im- proper or impertinent. (4) Motion to vacate or mod- ify orders already made ; as, to set a side a judgment by default ; or to dissolve an injunction ; or to vacate an order appointing a receiver ; or to discharge prop- 10 MODERN AMERICAN LAW LECTURE erty from levy made thereon. These will fairly rep- resent the motions which may be made respectively by plaintiff and defendant. There are many motions which are open alike to either plaintiff or defendant, according to the nature and status of the case, such as: (1) Motions in re- gard to evidence by deposition when it is desired to require the opposite party to produce documents ; or, motion to give special notice of the deposition, or to extend the time for taking proof beyond that usually allowed ; or to re-examine a witness whose deposition has already been filed. (2) Motions in regard to re- ports ; such as, motions to refer the case to referee ; to prescribe the time or conditions of the hearing be- fore him, or the making of his report ; motion to re- commit a report already made, or to confirm the same. (3) In equity or chancery cases, motion to confirm a sale of, land ; or to set it aside ; motion to open biddings ; or to revive an order of sale. These and similar motions are open to either party alike whenever desired by him for the purpose of obtain- ing or protecting his rights in the premises. The intent and effect of the several motions may be im- plied or understood from the words and phrases used in each motion; but they will be further explained when we are considering the orders made by the court upon motion of either party. CLASSIFICATION OF MOTIONS In many states motions are classified in practice, as: (1) motions of course, (2) special motions. Mo- tions of course include all those motions which are DRAFTING COURT MOTIONS AND ORDERS 11 granted as a matter of course. This results gener- ally from failure of a party to comply with some or- der or rule of court, or some statute, and does not require notice to the opposite party; or even the action or judgment of the court in the premises in- stead of the order of the court or judge, a formal order of course is entered by the clerk upon the face of the papers or record as it stands at the time of the motions. This class of motions includes those based upon failure of either party to comply with any spe- cial order of the court, or rule of court, or rule of law, for the doing of some act in a specified time or by particular date ; and it may be so serious as to involve the dismissal of the suit for a mere formal default. Thus, in the practice in the federal court on the equity side, no special pleading may be filed by the plaintiff in response to the defendant's answer, but only a general replication of a prescribed form, like the following: "This replient saving and reserving all advantage of excep- tion to manifold insufficiencies of the answer for replication thereto, saith : That he will aver and prove his bill to be true and sufficient, and that the said answer is untrue and insuffi- cient. Wherefore, he prays relief as in said bill set forth." It is hard to imagine a more formal and less scien- tific and significant sample of pleading than this gen- eral replication. Apparently, the case could be tried and disposed of just as completely and effectually without this formal pleading as with it ; and yet, un- der the former rule of practice in equity in the United States courts, the complainant was bound by 12 MODERN AMERICAN LAW LECTURE the rule day next succeeding the rule day on which the answer was filed to file this general replication and thus complete the issue in the cause. For com- plainant's failure to do this, the defendant was en- titled, as of course, to an order for the dismissal of the suit, which did not require hearing before a judge, but would be entered by the clerk of the court upon the defendant's motion. Special motions, on the contrary, are all required to be presented to the court or a judge thereof at chambers for his consideration and decision ; and the matter thereof includes all other subjects and forms of motion than the "motions of course." In many states all special motions are required to be reduced to writing before offered for consideration; and in some cities thereof copies must be served on the op- posite party with notice of the time and place when they will be presented. The purpose of this rule of course is to enable the opposite party to appear and resist the motion if he desires, and also to present to the court or judge, at chambers, reasons therefor, and a brief of the points upon which he relies for its resistance. It is a general rule in the so-called " Code-States," and in some others, that motions of course, since they do not require the exercise of judicial discretion, may be made to the clerk and entered and acted upon by him, the action which he takes being merely a formal allowance of the motion when within the terms of the order or rule of court. This implies, of course, that the clerk must examine, to see whether such rule or order has been violated or complied with, and to enter DRAFTING COURT MOTIONS AND ORDERS 13 or refuse the order sought, in accordance with this compliance or non-compliance by the party. In most courts the clerk is required to keep a mo- tion docket, or book, upon which, in the order of mak- ing them, the motion-maker enters his motion or rule. These motions usually stand upon this docket, or book, until the next motion-day following, which is usually some specified day of the month or the week when the court or judge hears this docket called, and the suggestions or arguments of the parties, pro and con, and makes decision thereof and directs orders accordingly, which are entered by the clerk upon the minutes of the court ; or, in some states, upon the rule docket kept for that purpose. A motion formally entered, as, for a new trial, for example, is in the following form: JOHN DOE ] vs. MOTION FOR A NEW TRIAL RICHARD ROE] COMES the defendant, by attorney, and moves the .Court to set aside the verdict against him in this case and grant a new trial, for the following reasons: (1) Said verdict is against the weight of evidence. (2) The deposition of Sam Slack was erroneously admitted over defendant's objection. (3) The Court erred in instructing the jury that defendant would be liable to plaintiff, even though they found that his injury was the result of the concurring negligence of himself and his fellow-servant. (4) Because the charge of the Court was not written and a copy thereof furnished to the jury when they retired to con- sider the cause. (5) Because the damages are outrageously excessive. The foregoing form of motion is a fair sample of the degree of particularity required in most courts 14 MODERN AMERICAN LAW LECTURE of the party making a motion for a new trial, or for any other important order, or any special motion in the case. Motions of course do not require the same degree of particularity, for orders may be entered upon them if only they indicate the nature and ex- tent of the action to be taken. The motions for a new trial are the most common and important in use in the courts of law. The purport and intent of this motion is that the most important, expensive and de- cisive step in the case shall be entirely undone, the time and labor implied in their end all lost, and the experiment of a trial be repeated. Such action of course can only be called for upon the most cogent and persuasive reasons, and, therefore, great particu- larity is usually required in the statement of the motion. MOTIONS FOR REPLEADER Similar results may be obtained by similar motions made in the trial courts. Of these, the first to be considered is the motion for a repleader. This mo- tion is appropriate when the maker thereof conceives that the case has been tried upon an issue wholly im- material, or better, perhaps, that the pleadings them- selves have not resulted in a material issue. Such immaterial issue sometimes results from the ignor- ance or carelessness of the pleaders, whereby the law- yers, failing to appreciate or understand the bone of contention between their clients, have so drawn their pleadings as to result in a side issue which is not, or should not, be decisive of the case. When a case is tried upon such merely formal and immaterial issue DRAFTING COURT MOTIONS AND ORDERS 15 whereby the real facts of the controversy are ignored (which does not often happen) it is obvious that the purposes of the law in granting a trial by jury of an issue of fact have entirely miscarried, and the parties are really no nearer the end of their contention than at the beginning of the suit. The only relief for such a deplorable plight, of course, is that the former pleadings resulting in this immaterial issue shall be withdrawn and the parties shall, by attorneys who are capable, make an intelligent statement of their ac- tions and defenses so as to present for trial the ma- terial issues existing between them. This result is effected by a motion for a repleader, that is, a plead- ing over, resulting in a material issue and a trial thereof which shall settle the parties' controversy. MOTION IN ARREST OF JUDGMENT This is a formal motion open to the defendant when he conceives that the record of the case, that is to say, the processes, pleadings, and verdict do not warrant or authorize the judgment entered by the court, nor, indeed, any judgment against him. This motion is generally made when the plaintiff's declaration fails to show any sufficient cause of action. Of course, in such case the defendant ought originally to have de- murred to the declaration; but his failure so to do is not a conclusive confession by him that the plain- tiff had shown a good cause of action ; and if, as mat- ter of fact or of law, the plaintiff's declaration does fail to show a ground for judgment against defend- ant, judgment ought not to be entered against him. The verdict of the jury in favor of plaintiff does not 16 MODERN AMERICAN LAW LECTURE help the matter does not aid the plaintiff's case; it merely shows that his declaration is true. But this amounts to nothing, if it is not sufficient, if it states no cause of action at law against the defendant. Every proper presumption, of course, will be in- dulged by the Court on this motion, to sustain the action and approve the verdict by proper judgment ; but if, even then, the court can see that the plaintiff's complaint is without legal foundation, the motion will be sustained and the judgment arrested. MOTION NON OBSTANTE VEREDICTO This motion in form presents the phraseology used by the English bar hundreds of years ago, when Latin and Norman French were the languages of the law, instead of plain English as now. It means a motion for judgment notwithstanding the verdict; a judg- ment contrary to, and in defiance of the verdict re- turned by the jury. Such a motion, of course, calls for an heroic remedy. It is made on behalf of the plaintiff, who conceived that, on the trial of the case, no facts were presented which warranted a verdict against him and in favor of defendant. It generally assumes, if it does not express, that the verdict re- turned by the jury was the result of either ignorance or prejudice, and sometimes of both combined. Cases of this kind have occurred, and the motion for judg- ment non obstante veredicto has been sustained by judges in cases not a few. Illustrations of it are found in the reports of actions of ejectment brought in the Appalachian region by grantees or patentees of land holding a good paper title against pioneers, DRAFTING COURT MOTIONS AND ORDERS 17 or settlers, or squatters, who have taken possession of land without any warrant or title whatever, and were relying solely upon their occupant rights. In such cases it was not uncommon for the jury of the vicinage to render verdict in favor of their neighbors and against the stranger with the paper title. It is not hard in such cases for the judge presiding to see and decide that, whatever may be the merits of the pioneer who has only the squatter's claim, the law is obviously with the plaintiff. In such case, the mo- tion is usually allowed and the judgment pronounced by the court in favor of the plaintiff non obstante veredicto in favor of the defendant. UNITED STATES SUPREME COURT MOTIONS The reports of the decisions of the Supreme Court of the United States show many interesting cases of motions made for a summary disposition of cases pending therein by appeal and writ of error. Mon- day of each week is motion day in the Supreme Court, and one hour on each side allowed for the argument of a motion, the most interesting form of which is the "motion to dismiss or affirm." The motions to dismiss are based upon the ground that the court has no jurisdiction of the case; whereas, the motion to affirm must rest upon the idea that the court has jur- isdiction, and, therefore, may affirm the judgment or decree of the court below. This double motion of inconsistent parts is allowed by special rule of the court on the ground that, although the record may show that the court has jurisdiction, it is manifest that the writ of error or appeal w r as taken for delay 18 MODERN AMERICAN LAW LECTURE only; or that the question upon which the jurisdic- tion depends is so frivolous as not to need further argument. This motion will oftentimes bring about the speedy decision of a case which otherwise might hang in court for years. MOTIONS AS ACTIONS The most interesting and important form of mo- tions at law is not included within the general defini- tion heretofore given, that they are made to "obtain orders merely incidental to a pending suit." Under statutes in many states actions of importance may be brought or instituted in the form of motions merely, which will authorize final judgment of weight and importance. Actions thus brought by motion are in- tended to give to parties of special deserving, or against persons of official delinquency, summary rem- edies which will obviate the expense and delay inci- dent to the ordinary action at law, or suit in equity. Such remedies, of course, depend entirely upon the statute of the State in which the suit is brought, but generally they will be found to be embraced within the following description: (1) Motions against sheriffs or other officers for failure to make due return of process in their hands for service. (2) Motions against clerks for failure to issue process authorized and required by law. (3) Motions against these officers and others hav- ing official custody of moneys belonging to the parties to a suit, and growing out of the litigation thereof, DRAFTING COURT MOTIONS AND ORDERS 19 for failure to pay over the same as required by law, or by the order of the court. (4) Motions against county or state trustees or treasurers for failing to pay out public funds in their hands as directed or required by law. (5) Motions against attorneys at law for money collected or received by them and not paid over to the party entitled, according to law and their duties. (6) Motions in favor of sheriffs, constables, and other executive officers for judgments upon bonds of indemnity, and delivery bonds given to them to retain or acquire property seized by them under legal process. (7) Motions by sureties, stayers and endorsers against the principal for moneys paid by them in dis- charge of obligations for which the principals are pri- marily, and they only secondarily, liable. The object of these motions is to obtain, not an or- der, but a summary judgment for moneys which par- ties are obviously entitled to, without the delay and formality of pleadings and trials. Such summary judgments are based generally upon record evidence, or upon penal bonds, or upon official delinquencies so obvious and censurable as to allow and require, for justice' sake, a peremptory and summary judg- ment, not only for the sum really due, but also usually for exemplary damages. Such motions against of- ficers usually include as defendants the sureties of such officers upon their official bonds. In many cases above mentioned, as, for example, the failure to is- sue process or to return process, notice is not required to be given of a motion made at the ensuing term of 20 MODERN AMERICAN LAW LECTURE the court. These summary judgments by motion, and without the ordinary legal process, are provided for and authorized by the statutes of the state, usually because of some special merit of the mover, or some special demerit of the defendant. These special merits or demerits, in the opinion of the general as- semblies, are such and so great as to warrant the ex- ception of these special and summary remedies from the general rules requiring ordinary process of law and due trial before final judgment is pronounced. Such proceedings do not strictly belong to Motions and Orders because they are not incidental and sec- ondary, but are in the highest degree primary and summary. Space is given them here, however, be- cause they are included by modern practice within the scope of "motions" as used and understood in the courts of the country. ORDERS In legal practice the word "order" is used to de- scribe any written direction or mandate given by a judge or court for the performance of, or abstinence from, any act in connection with the suit when the same is not embraced in the final judgment. The words used to describe or designate various forms of orders, with reference to the stage of the case, are preliminary, initial, interlocutory, and final. A judge may write and sign a "preliminary" or- der upon a bill or petition presented to him directing the same to be filed, and process issued thereon, in- cluding therein also the terms and conditions upon DRAFTING COURT MOTIONS AND ORDERS 21 which this is to be done, and usually requiring some- thing to be performed by the petitioner, or plaintiff. " Initial" is the word used to describe an order made by the judge or court, not before, but after the beginning of the suit, directing, in part, the first step to be taken therein by the party plaintiff. This or- der is usually entered upon the minutes of the court, though in some instances the judge may endorse such order upon the bill or petition. " Interlocutory" orders are those made pending the progress of the case, and generally for the purpose of facilitating the same, such as an order of refer- ence directing the clerk, or a referee, to hear the case, or certain features embraced in it, and report the result of his investigation to the court. These in- terlocutory orders are sometimes called "interlocu- tory decrees," the distinction between order and de- cree in this connection being that in the decree cer- tain matters pertinent to the execution of the order have been adjudged and determined by the court as the basis of the reference, or report, while the word "order" implies no such decision, but merely a di- rection of the court for proceeding. A "final order" is one directing the dismissal or termination of the suit, and striking it from the trial docket. Usually this final action of the court in the cause is called "judgment," or "decree," because it generally decides or determines the case upon its merits, or some of them, and distinctly awards or re- fuses the relief or remedy sought by the suit. Such a decree or judgment usually embraces a recovery of some property, or sum of money, and awards final 22 MODERN AMERICAN LAW LECTURE process for its execution. A final order, however, omits all matter of reason, or cause, for decision upon the merits of the case, and merely terminates the suit by dismissal. An order in a lawsuit is usually the response of the course to the application, motion, or petition of a party, either plaintiff or defendant, and operates to speed the hearing and disposition of the same upon its merits, or to delay or prevent such decision ac- cordingly as the motion is made by the plaintiff or the defendant. The right to an order is not the prop- erty of either party, but may be used by either, ac- cording to his wish or need; and the court, in mak- ing the order, will direct its form and substance as may be made to appear right and just at the time. A " decretal order" is usually interlocutory, and while it directs something to be done, it usually first expresses some decision as the basis of this direction, as, for instance : "It appearing to the court in this case that the plaintiff, as one of the heirs of John Mann, was en- titled to the possession of the farm called "Black Acre" at the death of his ancestor, it is, therefore, ordered by the court that the defendant, Asa Lee, executor, etc., surrender and deliver up the posses- sion of said farm forthwith to the said John Mann." Orders are also classified as "General" and "Spe- cial," according to their nature and the purpose in- tended and end sought by them. A special order is one directing either party to do or perform some particular act* such as the one just mentioned in the decretal order about " Black Acre." Such an order DRAFTING COURT MOTIONS AND ORDERS 23 would also be special if, instead of a single farm it should direct the surrender of two farms "Black Acre" and " White Acre;" for such order gets its name, not from its singularity, but from its specialty, that is, the particularizing in the order of the objects comprehended within its scope. A " general order" made in a case is one that is intended to control and direct, not a single person or a single act, or affecting specified pieces of property, but one affecting all parties to the suit, or all of a certain class, and either permitting or requiring them all to do acts or take steps in the case of similar na- ture and import, for example : GEORGE JONES vs. GENERAL ORDER ADAM BLAKE "In this cause all the defendants are allowed time until 1st July prox. in which to file their respective answers, and the Clerk is hereby directed to enter default against all who do not file their answers by that day." There is also a form of order called "order nisi," which is a common f orm of conditional order wherein some party is specifically directed to perform some specific act at a specified date, unless some certain thing shall happen before that date, or unless he or some other person shall have done something else which is recognized as a substitute for the act spe- cifically ordered, the word "nisi," meaning very pointedly "unless." An order of frequent use, particularly in adminis- tration cases, equity cases, and accounting cases, is an "order of reference." The purpose of this is to 24 MODERN AMERICAN LAW LECTURE refer all matters of dispute or difference or claim ex- isting between the parties to a clerk, or a master, or a referee, or some disinterested person, for the pur- pose of ascertaining the facts by proof heard before him and reporting the result thereof to the court. This report is often the basis of a final disposition of the cause. RESTRAINING ORDER A common kind of order in injunction suits is a restraining order made at the beginning of the suit as a temporary substitute for an injunction to be ef- fective and restrain the defendants until such date as is fixed for the hearing of the application for the writ of injunction. It is a special favorite of the federal courts on their equity side, and relieves the court of the burden of granting ex parte a writ of in- junction which is intended usually to stand until the regular hearing of the cause. The "order of revivor" also is one in necessary and frequent use whenever a party to the suit departs this life. The purpose and effect of this order of re- vivor is to bring before a court, in proper way, the person or persons surviving who represent in law or equity the rights and interests of the deceased per- son, and to revive the case in the name of such per- sons, thereby making them substitute parties to the suit, in lieu of the deceased. The "consent order" is so-called from the fact that both parties have agreed that the court may pro- nounce the order in the cause and will, of course, therefore, be governed by it without further notice DRAFTING COURT MOTIONS AND ORDERS 25 or process. The fact that it is, or has been so agreed to is recited in the order itself, and the parties are thereby estopped from denying their consent thereto. Another frequent form of order is the order pro confesso, generally called merely "pro confesso." This order usually recites that it appears to the court that the defendant had been duly served with process requiring him to appear and answer the plaintiff's bill, or suit, on or before a certain day named, and that he has failed to comply therewith, or to make any defense in the cause. Wherefore, it is ordered that the bill, or petition, be taken for confessed (pro confesso) and that the same stand for hearing against said defendant ex parte. The " order of publication" is frequently made in equity suits, or administration cases, and, as its name indicates, directs the clerk to make publication of some fact pertinent to the case, or notice of some action to be taken by the court, or warning to some persons interested, usually defendant, to appear and answer, or file their claims, or do some other things which may be to their interest, and of which they ought in justice to be notified. This order of pub- lication generally specifies the paper in which the publication is to be made, and the number of times in which it is to be inserted. "Order of appointment" is another form and style of order necessarily resorted to when some de- fendant in the case is under age, or non compos, and requires, in the view of the law, some competent per- son to make defense for him. Such person is usually called a guardian ad lit em (for the suit) and the or- 26 MODERN AMERICAN LAW LECTURE der designates the person thereby appointed to this position, and fixes the time within which he is to make defense, and sometimes specifies very particular acts which he shall do, as necessary to the defense of his ward. "Nunc pro tune" order is the name commonly given to an order entered upon the records of a court on one day for some previous day of the court ' ' nunc pro tune, " * ' now for then. ' ' The name ' ' nunc pro tune'* signifies and emphasizes the fact that the order has been made on a previous day on which it should have been entered, and that it is entered, not made, now for then made upon one day and entered on a later day. A rule nisi, or an order to show cause, is an order requiring a party to do a certain thing, or to appear and show cause why it should not be done or per- mitted, and is oftentimes the beginning of a penal proceeding, the object of which is to compel a certain thing to be done, or punish the person for non-per- formance. Orders are allowable likewise for any and all the purposes expressed under the head of motions, and usually take their name or style from the nature or purpose of the motion. VACATING ORDER This is the name commonly given to an order whereby the court sets aside, or supersedes, or un- does, something directed by a former order, so as to put the case, as nearly as possible, in statu quo. Among the orders of this kind will be found "order DRAFTING COURT MOTIONS AND ORDERS 27 setting aside a pro confesso;" "order vacating a de- fault;" "order annulling a penalty;" "order vacat- ing service. " This last is an order whereby the court, finding that a return made by the sheriff upon some process showing service thereof upon some person has been improperly, or irregularly, or illegally made, so as to bring the person within the jurisdiction or order or power of the court, nullifies this return of the officer and declares it void, and thus leaves the party in the external condition in which he was be- fore the sheriff made this false, or irregular, or ille- gal service. In short, an order may be made by the court for anything which it is proper to enter a motion for; and so long as a thing already ordered remains un- done, it is proper for the court to vacate, or set aside, its former order. COURT, OR CHAMBERS Any order may be made in open court, and all or- ders not "orders of course" must be made in open court, unless authorized by statute. "Orders of course" are made usually by the clerk, but are some- times granted by a judge at chambers. It is a gen- eral rule that notice must be given before any order can be obtained from a judge at chambers. Orders in court are usually granted upon motion and with- out special notice, unless notice is required by statute or rule of court. Orders in court are entered upon the minutes of court. When made at chambers they may be either written by the judge upon the petition, 28 MODERN AMERICAN LAW LECTURE or bill applying therefor, or upon some blank sheet, to be copied by the clerk upon the minutes of court. Every order should be properly entitled of the cause in which it is to be entered, and should in due and legal form give direction for the doing of the thing which is to be done. Unless this is intrusted to the clerk, this order should be prepared by the at- torney or solicitor for the party obtaining it; and where there is any dispute or contention over its form, this is to be settled by the judge or court, so that it may be as intended, when delivered to the clerk for entry on the minutes. It is the duty of the clerk to enter all orders made in court upon the minutes of court, and many in- formal or usual orders are so entered by the clerk without special assistance from anyone ; but it is the privilege of counsel obtaining an order to make formal draft thereof and deliver it to the clerk to be by him copied upon the minutes of court and depos- ited in the file or papers belonging to the case. This is called " entering an order," and should always be made on the day when the order is pronounced. In modern practice it is not uncommon to require service of a copy of the order upon the party affected thereby, to the end that he may be duly notified of the step about to be taken. In some cases this serv- ice is made by the officer; in others, copy of notice may be delivered by the opposite party, or his at- torney. It goes without saying that an order may be amended by the court, making it at any time before its execution. This is but a small part of that great DRAFTING COURT MOTIONS AND ORDERS 29 scheme and practice of amendment which pervades all modern practice. This implies a recognition of the imperfection of human action, and a desire of the law for the correction thereof by due amendment. An order, like a judgment or decree of a court, so long as it remains without change or vacation, is not open to collateral attack; nor is it to be ignored or defied by parties, but is to be executed as a necessary or proper step in the administration of justice in the case. If the party to be affected by it wishes to avoid its consequences, he must apply to the court, making the order for its amendment, suspension, or vaca- tion. If he does not do this, then he must submit, like a good citizen, to the execution or enforcement of the order. It is a general rule in nearly all the states that any application for a change or vacation of an order of court must be made to the court or judge making the order; but in some cases this application may be made to the Appellate Tribunal, or court, to which an appeal lies, from the judgment or decree of the court pronouncing the order. Whether the one or the other may or must be done is regulated by statute, or the rules of procedure prevailing in the jurisdic- tion. If there is any doubt as to the meaning or scope of the order because of defect or uncertainty in its terms, it is always to be construed with reference to the general object of the case in which it is made, so that it may be in accordance therewith, and not in contradiction thereof, unless the motion is made by the defendant with the obvious purpose to delay or defeat the suit. Generally, indeed, it may be said 30 MODERN AMERICAN LAW LECTURE that the motions of the plaintiff are expected to ad- vance the suit, and those of the defendant to obstruct it, and orders will, therefore, be interpreted accord- ingly. But it is, of course, to be understood that or- ders in the case are intended for the parties in that case, and are not to be construed as affecting stran- gers to the case. Usually an order will be construed as intended to operate and be enforced before the term of court next succeeding, for it is to be remem- bered that orders are incidental and inferior to the main purpose and object of the suit. ENFORCEMENT We have now come to the important and vital part of an order, for it is idle to pronounce orders or enter them upon the minutes of court unless they are en- forced, and it is a fundamental rule of court pro- cedure that orders are to be enforced according to their terms. Where an order directs the specific per- formance of any act other than the payment of money, it is to be enforced, in case of a disobedience, by an attachment of the party disobeying, for con- tempt of the order of the court. This process, when executed, will bring the disobedient party into the presence of the court, and if he is found in contempt of the court's order, he may be either fined or com- mitted to jail. This committal may be for a definite period or indefinitely until he repents and consents to obey. If the order is for the payment of a certain sum of money, this is usually enforced by a writ of ex- ecution against the property of the person ordered DRAFTING COURT MOTIONS AND ORDERS 31 to make the payment; and where this proves inef- fective and the money is not thereby obtained, it is proper and not uncommon for the court to enforce this order for money, as others, by proceeding for contempt. Where notice of motion is required, the party no- tified, of course, may appear and resist the applica- tion for an order, and for that purpose he may pro- duce affidavits or other appropriate evidence to coun- teract the affidavits or evidence offered by the apply- ing party. Arguments are also heard, pro and con, by the judge, whenever it is desired and proper, the party making the application usually having the right to open and close the discussion. Decision of these controverted motions for orders is usually made promptly by the court, to the end that the matter may be expedited. Sometimes, how- ever, where matters are of importance and difficult of solution, the court or judge will take the matter under consideration and give his judgment at a later day. Motions and orders, in the very nature of things, must be largely as to procedure in the discretion of the court; but if there is statutory or peremptory rule for the proceeding, this supersedes the discre- tion of the court and requires obedience thereto. APPEALS Final orders, as matter of course, are subject of appeal, like judgments and decrees, because they are final. Generally, however, interlocutory orders can- not be changed or delayed by appeals, but must be 32 obeyed. In some cases, however, statutes provide for appeal even of interlocutory orders, where they affect the substantial rights of the party; and the further proceeding in the case is thereby suspended until the decision of the Court of Appeals. GAYLAMOUNT PAMPHLET BINDER Syracuse, N.Y. Stockton, Calif. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. 2 3 T977 JUN 2 3 1977 APR23198Q til library Reel HAY 3 1 Form L9-Series 4939