CHAPTER XVIII

PROCEDURE IN THE ORDINARY FEDERAL COURTS OF ORIGINAL JURISDICTION-COURTS OF LAW

135. Distinction between Law and Equity.

Procedure in Courts of Law.

Same-Process.

Same-Attachments.

Same-Appearances.

Same-Parties to Common-Law Actions.

Same-Pleading.

136.

137.

138.

139.

140.

141.

142.

Same Continuances.

135. The distinction between law and equity in the federal courts in all matters of procedure is carefully preserved and guarded, for it is a distinction made by the Constitution. Hence the federal courts preserve this distinction, and are not affected by the reform procedure adopted in many of the state courts abolishing it.

Equitable Titles

For this reason equitable titles or suits of an equitable nature cannot be sustained on the common-law side of the federal court, nor can a state statute prescribing a remedy at law for a cause of action essentially equitable in its nature apply to the federal courts.1

1 Fenn v. Holme, 21 How. 481, 16 L. Ed. 198; Lindsay v. First Nat. Bank, 156 U. S. 485, 15 Sup. Ct. 472, 39 L. Ed. 505; McKemy

On the same principle, although the federal courts will follow the state courts in their rules as to the joinder of causes of action, provided the causes of action are all legal in their nature, they will not allow the joinder of legal and equitable causes of action in one suit.2

Equitable Defenses

So, too, equitable defenses cannot be set up in the federal courts in actions at law. For instance, they cannot take cognizance of a plea of equitable set-off;3 nor of an equitable title in defense to an action of ejectment. But many defenses equitable in nature may be proved by way of counterclaim under a plea of the general issue or payment, if growing out of the same transaction; that being allowable under the later common-law decisions.

Nor can a reply to a plea be made which sets up an equit able ground as a means of defeating the defense made by the plea; as, for instance, where the defendant pleaded a release, the plaintiff cannot reply that the release was obtained by fraud and misrepresentation, though the state practice allowed it."

v. Supreme Lodge A. O. U. W., 180 Fed. 961, 104 C. C. A. 117. See "Courts," Dec. Dig. (Key-No.) § 342; Cent. Dig. §§ 912, 913.

2 SCOTT v. NEELY, 140 U. S. 106, 11 Sup. Ct. 712, 35 L. Ed. 358; Bennett v. Butterworth, 11 How. 669, 13 L. Ed. 859; American Creosote Works v. C. Lembcke & Co. (C. C.) 165 Fed. 809. See "Courts," Dec. Dig. (Key-No.) § 342; Cent. Dig. §§ 912, 913.

3 Scott v. Armstrong, 146 U. S. 499, 13 Sup. Ct. 148, 36 L. Ed. 1059; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679. See "Courts," Dec. Dig. (Key-No.) § 342; Cent. Dig. §§ 912, 913.

4 Schoolfield v. Rhodes, 82 Fed. 153, 27 C. C. A. 95. See "Courts," Dec. Dig. (Key-No.) § 342; Cent. Dig. §§ 912, 913.

5 DUSHANE v. BENEDICT, 120 U. S. 630, 7 Sup. Ct. 696, 30 L. Ed. 810. See "Courts," Dec. Dig. (Key-No.) § 342; Cent. Dig. §§ 912, 913.

6 Hill v. Northern Pac. R. Co., 113 Fed. 914, 51 C. C. A. 544. See "Courts," Dec. Dig. (Key-No.) §§ 335, 342; Cent. Dig. §§ 902-9072, 912, 913.

PROCEDURE IN COURTS OF LAW

136. The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty cases in district courts of the United States, conform as nearly as practicable to those existing in like causes in the courts of record of the state within which district courts are held, except that the federal courts are given power within prescribed limits to make rules for the regulation of the details of their own practice, provided, however, the substance and general methods of procedure in the state courts are observed.

The subject of procedure is regulated by chapter 18 of title 13 of the Revised Statutes. In so far as this applies to the common-law courts, the most important provision is section 5 of the act of June 1, 1872, embodied in section 914 of the Revised Statutes, which reads as follows:

"The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding."

This act must also be construed in connection with section 918 of the Revised Statutes, which reads:

"The several circuit and district courts may, from time to time, and in any manner not inconsistent with any law of the United States, or with any rule prescribed by the Supreme Court under the preceding section, make rules

7 U. S. Comp. St. 1901, p. 680. 8 U. S. Comp. St. 1901, p. 684. U. S. Comp. St. 1901, p. 685.

and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering and making up of judgments by default, and other matters in vacation, and otherwise regulate their own practice as may be necessary or convenient for the advancement of justice and the prevention of delays in proceedings."

Under these two sections, the federal courts are not bound to adopt the state practice in all its details, but they have a discretion in conforming only "as near as may be," and in regulating by rule details which would not change the substance and general methods of procedure of the state practice.10

SAME-PROCESS

137. The federal courts adopt the general forms of process of the state courts on the common-law side, subject, however, to their own regulations. But the federal law requires that their process shall be under the seal of the court, and signed by the clerk, and that those issuing from the Supreme Court shall bear teste of the chief justice or associate justice next in precedence when the chief justiceship is vacant; and those issuing from the district court shall bear teste of the district judge; or, when that office is vacant, of the clerk.

Defective process may be amended, but no amendment can make a void process valid.

The federal courts adopt the general forms of process of the state courts on the common-law side, subject, however, to their own regulations. Sections 911 and 912, however,

10 SHEPARD v. ADAMS, 168 U. S. 618, 18 Sup. Ct. 214, 42 L. Ed. 602; Hills & Co. v. Hoover, 220 U. S. 329, 31 Sup. Ct. 402, 55 L. Ed. 485, Ann. Cas. 1912C, 562; Walker v. Monad Engineering Co.. 196 Fed. 206, 116 C. C. A. 38. See "Courts,"" Dec. Dig. (Key-No.) § 341; Cent. Dig. § 899.

are obligatory on process of the federal courts. They require that the process shall be under the seal of the court, and signed by the clerk, and that those issuing from the Supreme Court or circuit court shall bear teste of the chief justice or associate justice next in precedence when the chief justiceship is vacant; and those issuing from the district court shall bear teste of the district judge, or, when that office is vacant, of the clerk. Hence, under this provision, no process can be used in the federal courts which does not issue from the court, and is not in conformity with the provisions of these sections. This excludes the procedure by motion common in some states, when the notice of motion is simply signed by the attorneys and served on the attorneys. A motion, when authorized by state practice, can be used in the federal courts; but in such case the notice of the motion which is served on the defendant must be signed by the clerk, and must be under the seal of the court. In that form the procedure is correct, and not at all uncommon.11

Except as to the method of signature, however, the form of the process in the state courts on the common-law side can be used in the federal courts.12

Amendments

Process issuing from the federal courts may be amended under the provisions of section 948 of the Revised Statutes,11 13 which enacts:

11 Dwight v. Merritt (C. C.) 4 Fed. 614; Peaslee v. Haberstro, Fed. Cas. No. 10,884. But see, contra, Leas & McVitty v. Merriman (C. C.) 132 Fed. 510; Schofield v. Palmer (C. C.) 134 Fed. 753. See "Courts," Dec. Dig. (Key-No.) § 344; Cent. Dig. § 917.

12 Gillum v. Stewart (C. C.) 112 Fed. 30. But the federal courts may make their own regulations as to return days. Boston & M. R. Co. v. Gokey, 210 U. S. 155, 28 Sup. Ct. 657, 52 L. Ed. 1002: U. S. v. United States Fidelity & Guaranty Co., 186 Fed. 477, 108 C. C. A. 455. See "Courts," Dec. Dig. (Key-No.) § 344; Cent. Dig. § 917.

13 U. S. Comp. St. 1901, p. 695; Speare v. Stone, 193 Fed. 375, 113 C. C. A. 301. See "Courts," Dec. Dig. (Key-No.) § 344; Cent. Dig. §