Federal Jurisdiction

The allegations necessary to show its jurisdiction as a federal court have been discussed in connection with the general jurisdiction of the federal courts.19 It must show ín general the citizenship of the parties, if that is the ground of the jurisdiction; the federal question involved, if that is the ground of jurisdiction; the amount involved, if that is an essential element of jurisdiction; and the residence. These are covered by the first two paragraphs of the twenty-fifth rule.

Equity Jurisdiction

In showing the jurisdiction of the court as an equity court, the general rules of chancery pleading and practice apply; but they are beyond the range of this treatise. It was once said that a bill in chancery contained a story thrice told. Under the equity rules, however, many of the allegations customary in the old English bills in chancery may be omitted, though they are still frequently inserted, apparently for no other reason than that lawyers, when they prepare bills, follow blindly the old form books.

The only thing necessary is in the language of the twenty-fifth rule, "a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evidence."

The bill should ask the special relief desired, and contain a prayer for general relief. Under the latter prayer any relief may be granted consistent with the facts stated, although it is not specially prayed for.20

If it asks special relief pending the suit, it must be sworn to.

Parties

On account of the constant inconvenience experienced in the federal courts from inability to make the proper par

19 Ante, p. 218 et seq.

20 Hobson v. McArthur, 16 Pet. 182, 10 L. Ed. 930; Tyler v. Savage, 143 U. S. 79, 12 Sup. Ct. 340, 36 L. Ed. 82. See "Equity," Dec. Dig. (Key-No.) § 427; Cent. Dig. §§ 1001–1014.

ties, it is provided by rule 25 that, in case persons appearing to be proper are not made parties, the bill must show that they are out of the jurisdiction, or cannot be joined without ousting the jurisdiction. It has been shown in a previous connection that this does not authorize a bill where the parties omitted from it are so essential that no proper decree can be made in their absence.21

Signature of Counsel

Under rule 24 every bill or other pleading shall be signed individually by one or more solicitors of record, and such signatures shall be considered as a certificate by each solicitor that he has read the pleading so signed by him, that upon the instructions laid before him regarding the case there is good ground for the same, that no scandalous matter is inserted in the pleading, and that it is not interposed for delay.

This signature of counsel is intended as a pledge of good faith. A bill which does not contain it is defective, though an indorsement by counsel will be treated as a signature. 22

A bill which is not signed by counsel will be ordered off the rolls, but if it is signed the court will permit it to be restored to the rolls, though in that case it is practically a new bill, and does not relate back to the time of its first filing.23

Impertinent Matter

It is an inherent power of courts of equity to protect their own records, and to guard litigants from unnecessary and irrelevant attacks. Hence a bill which is rambling and prolix may be ordered off the files. If it contains any scandalous or impertinent matter, the court will act all the

21 Ante, p. 256 et seq.

22 Dwight v. Humphreys, Fed. Cas. No. 4,216. See "Equity," Dec. Dig. (Key-No.) § 311; Cent. Dig. § 613.

23 Roach v. Hulings, Fed. Cas. No. 11,874. See "Equity," Dec. Dig. (Key-No.) § 311; Cent. Dig. § 613.

more quickly; and under rule 21 it can in such case act on its own motion.24

Parties

The suit should be prosecuted in the name of the real party in interest, and any person may be a defendant who has or claims an interest adverse to the plaintiff. Rules 37, 38, and 39 contain liberal provisions for suits in a representative capacity, for interventions, and for omission of absent parties who would defeat the jurisdiction. Interrogatories

Under the old rules the plaintiff could propound interrogatories to the defendant, annexing them to his bill; but the defendant could not return the compliment, his only remedy being a bill of discovery.25

The new rules in this respect are more flexible. Rule 58 allows either to propound interrogatories to the other, under judicious restrictions as to time, contents, and enforcement. It is so liberal in its provisions as to obviate the necessity for bills of discovery.

SAME-SAME-INJUNCTION BILLS

155. Injunction proceedings are instituted by the filing of a bill followed by an order to show cause. In exceptional cases, where it is necessary to preserve the status quo, the court will issue a temporary restraining order.

The injunction bill must be sworn to.

The injunction remedy is an extraordinary one, and such relief should not be granted unless it is necessary for the protection of the plaintiff's rights.

24 Kelley v. Boettcher, 85 Fed. 55, 29 C. C. A. 14. See "Equity," Dec. Dig. (Key-No.) § 151; Cent. Dig. §§ 380–382.

25 Oro Water, Light & Power Co. v. Oroville (C. C.) 162 Fed. 975. See "Courts," Dec. Dig. (Key-No.) § 351; Cent. Dig. § 924; "Equity," Dec. Dig. (Key-No.) § 140; Cent. Dig. §§ 317, 318.

The practice on bills praying special relief, like injunction bills, is carefully regulated by the federal statutes and rules. A bill for an injunction should always be sworn to, though this is not necessary in ordinary bills. When filed, the proper practice is to issue a rule to show cause why the injunction should not be granted, and name a day for the hearing of such a rule. The remedy by injunction is an extraordinary remedy, and in theory such relief should not be granted unless it is necessary for the protection of the plaintiff's rights. It should never be granted merely because it will do no harm.26

Equity rule 73 (corresponding to old rule 55, but much stricter) provides:

"No preliminary injunction shall be granted without notice to the opposite party. Nor shall any temporary restraining order be granted without notice to the opposite party, unless it shall clearly appear from specific facts, shown by affidavit or by the verified bill, that immediate and irreparable loss or damage will result to the applicant before the matter can be heard on notice. In case a temporary restraining order shall be granted without notice, in the contingency specified, the matter shall be made returnable at the earliest possible time, and in no event later than ten days from the date of the order, and shall take precedence of all matters, except older matters of the same character. When the matter comes up for hearing the party who obtained the temporary restraining order shall proceed with his application for a preliminary injunction, and if he does not do so the court shall dissolve his temporary restraining order. Upon two days' notice to the party obtaining such temporary restraining order, the opposite party may appear and move the dissolution or modification of the order, and in that event the court or judge shall pro

26 Ladd v. Oxnard (C. C.) 75 Fed. 703; American Cereal Co. v. Eli Pettijohn Cereal Co., 76 Fed. 372, 22 C. C. A. 236; Teller v. U. S., 113 Fed. 463, 51 C. C. A. 297. See "Injunction," Dec. Dig. (KeyNo.) § 136, 137; Cent. Dig. §§ 305-309.

ceed to hear and determine the motion as expeditiously as the ends of justice may require. Every temporary restraining order shall be forthwith filed in the clerk's office."

And this notice is necessarily implied by section 263 of the Judicial Code,27 which reads as follows:

"Whenever notice is given of a motion for an injunction out of a district court, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the motion; and such order may be granted with or without security, in the discretion of the court or judge."

When the effect of issuing a rule to show cause without any preventive process would be that it would leave the defendant free to change the status quo, the court, in its discretion, may issue a temporary restraining order. The sole purpose of this order, however, in contemplation of the statutes regulating the subject, is to preserve the status quo. It is necessarily ex parte in its nature, and can be made an instrument of great oppression; for by such an order the defendant is often compelled to take action going beyond the mere preservation of the status quo. It is practically condemning him unheard.28

Thus the theory as to issuing injunctions in the federal courts is simple, and thoroughly settled both by the statutes and decisions. It is, in the first place, the filing of the bill and the issuing of an order to show cause; in the next place, the issuing of a temporary restraining order in

27 See, also, Mowrey v. Indianapolis & C. R. Co., Fed. Cas. No. 9,891. See "Injunction," Dec. Dig. (Key-No.) § 143; Cent. Dig. § 315. 28 Fanshawe v. Tracy, Fed. Cas. No. 4,643; Walworth v. Cook Co., Fed. Cas. No. 17,136; Cohen v. Delavina (C. C.) 104 Fed. 946; Miller v. Mutual Reserve Fund Life Ass'n (C. C.) 109 Fed. 278; North American Land & Timber Co. v. Watkins, 109 Fed. 101, 48 C. C. A. 254; Barstow v. Becket (C. C.) 110 Fed. 826; United Railroads of San Francisco v. San Francisco (C. C.) 180 Fed. 948; Blacklock v. U. S., 208 U. S. 75, 28 Sup. Ct. 228, 52 L. Ed. 396. See "Injunction," Dec. Dig. (Key-No.) § 143; Cent. Dig § 315.