authorizing the appointment of official reporters for the Federal courts should contain some provision to protect the courts and the public and the people whose rights are at stake as to accuracy and reliability of the reports.

I, as president of our association, hear complaints constantly of the inaccuracy of stenographic reports of proceedings before Government agencies. We do not hear those complaints against proceedings reported in the State courts where the shorthand-reporting profession is regulated by law.

If Mr. Ramsay's bill is reported out we feel that line 24 on page 4, after the words "authorized to appoint one" should read, "one or more competent shorthand reporters for each and every judge of each district court." In certain jurisdictions, particularly maritime jurisdictions, where the admiralty practice is heavy, one reporter could not even think of doing all of the work for a court.

Rule 80 does cover that, and it leaves the matter within the discretion of the court. It says, "may appoint one or more."

As to the matter of compensation, we feel that if Mr. Ramsay's bill should be enacted that the rate for the original of the transcript should be 25 cents per folio of 100 words, which is the rate that you pay your committee reporters here.

Mr. RAMSAY. I have it 20 cents.

Mr. ETTER. Yes; you have it 20 cents in your bill. The rates for carbon copies should be 10 cents a folio rather than 6 cents.

As I say, we favor very thoroughly and very heartily the principle embodied in Mr. Ramsay's bill. We do feel, however, that at this time there is not any probability of a bill carrying an additional appropriation for that purpose being enacted by the Congress. As a suggestion that might lead to its enactment, I suggest that sections 3 and 4 of subsection 430D be stricken, and that in lieu thereof, something like the following be substituted:

(3) Compensation for attending court and taking notes. Each district court shall fix by rule of court the compensation which such official reporters shall receive for their services and expenses in attending the court or judge and in taking the notes provided for in section 2 of this article.

"In criminal cases

Now, this is the point that I think reaches the matter not covered— when the judge of his own motion, or at the request of either the United States attorney or the defendant, directs that the proceeding be reported, the attendance fees and necessary traveling expenses of such reporters shall be paid by the United States marshal for the district out of the appropriation "Miscellaneous Appropriations, United States Courts.'

That, it seems to me, would be a workable measure, and one which would not bring down upon us the objections to increasing Federal appropriations, but would leave it practically within the budget of the Department of Justice as the budget now stands for their reporting services.

It all comes back to the point that the thing the bar and particularly the public is interested in is the accuracy and dependability of the stenographic reports. That is the thing that our profession is primarily interested in. In the trial of these cases not only property rights, but the lives and liberties of citizens are dependent upon the dependability and reliability of these stenographic reports. We feel that it is nothing less than ordinary prudence that the Congress should

see to it that none other than reporters whose competency has been tested are permitted to do this highly important work.

Mr. WEAVER. We appreciate your statement, Mr. Etter, and might suggest that if you have any detail suggestions to make you could put them into the form of a statement which you may file, so that we will have them.

Mr. ETTER. Thank you very much, Mr. Chairman.

Mr. WEAVER. Thank you for coming.

(Thereupon, at 12:15 p. m., the committee adjourned until tomorrow, Friday, March 4, 1938, at 10:30 a. m.)

RULES OF CIVIL PROCEDURE FOR THE DISTRICT

COURTS OF THE UNITED STATES

FRIDAY, MARCH 4, 1938

HOUSE OF REPRESENTATIVES,
COMMITTEE ON THE JUDICIARY
Washington, D. C.

The committee met at 10:30 a. m., Hon. Hatton W. Sumners (chairman) presiding.

The CHAIRMAN. The committee will come to order.

Major Tolman, the members of the committee have indicated that if you would be good enough to do it, they would like you to say something more about what you term the opening of judgment after the term of court.

If you will first complete your explanation of the rules, then there is the matter I have just referred to and several other questions which members of the committee would like to discuss with you.

STATEMENT OF EDGAR B. TOLMAN-Continued

Mr. TOLMAN. Mr. Chairman and gentlemen of the committee, I appreciate the fact that this is not a filibuster, and I hope you do, too. I am not trying to prolong it, and I am going to try to be as brief as possible in presenting the balance of my statement to you.

I think I can get through quickly if you will postpone asking questions until I finish, and then I will answer whatever questions I can, or I will come back at any time you would like me to come back.

The CHAIRMAN. I think it will be better if you will complete your statement, first.

Mr. TOLMAN. We were on rule 18, in reference to joinder of claims and remedies. Under this rule a plaintiff may join any number of claims of any nature that he may have against a single defendant, and he may also do this when there are several defendants, if the requirements of the rules on joinder of parties are satisfied.

Under this rule the court can give in one action whatever remedy is necessary, whether legal or equitable.

Subdivision (b) of rule 18 provides for the giving in one action at the same time, both legal and equitable remedies. Let me illustrate the special situation referred to in that part of the rule.

You may bring an action for the recovery of a judgment on a debt and in the same complaint you may ask to have set aside a fraudulent conveyance of property which would be subject to the judgment except for the fraudulent conveyance. It is a logical step in the union of law and equity procedure.

You cannot do that now because of an old maxim, dating from the days when there was hostility between the common-law judges and the chancellors, that before one could resort to a court of equity he must exhaust his remedy at law. If the procedure in law and equity is joined and there is but a single form of action, there is no longer any good reason for the application of that old maxim.

Rule 19 deals with the necessary joinder of parties. All persons. having a joint interest in the same transaction must be joined as plaintiffs or defendants. Subdivision (b) of this rule deals with the distinction between necessary and indispensable parties and the effect of lack of jurisdiction over some of them. If indispensable parties cannot be brought within the jurisdiction of the court the proceeding comes to an end. If, however, they are merely necessary parties, as distinguished from indispensable parties, the court may proceed with the case as to those who can be brought within its jurisdiction.

Rule 20 deals with the permissive joinder of parties, and that may be done where there are parties jointly, severally, or alternatively interested in the transaction, and a common question is involved. These rules are based on the English practice.

Then in rule 21 there is a provision with reference to the misjoinder and nonjoinder of parties. You know that according to common law misjoinder and nonjoinder were fatal faults. In many States those common-law doctrines have been modified, but not in all, nor in all alike.

This rule modifies the old practice so that nonjoinder and misjoinder are not fatal. They do not result in the dismissal of the suit, but the court will go ahead as to the parties properly joined, and bring in parties that ought to be joined.

Rule 22 deals with interpleader. For example, a suit is brought by a contractor in connection with a mechanic's lien on the building of a building. The subcontractors have subcontractors' liens, and all of the parties who are interested may be brought in and be compelled to interplead.

I pass rule 23 for the moment because rules 22 and 24 belong together.

Rule 24 deals in like manner with those interested in the subject matter of an action, whom the plaintiff has not brought in. This rule permits them to file a motion or petition for leave to intervene. It is new in some States, but in the code States generally there are liberal provisions for intervention and interpleader. This rule is taken from the best of those code provisions. The thing that is desired is to dispose of the whole controversy in one proceeding.

Rule 23 deals with class actions. That is an extremely technical subject but I think I can make the general purpose of the rule clear without spending too much time on it. Let us take the most familiar kind of a class suit for illustration.

A stockholder claims that he is aggrieved or defrauded by the action or nonaction of the directors. They refuse to bring the suit that he thinks ought to be brought to protect the rights of the corporation. Under present law he may bring an action on behalf of himself and all others similarly situated to compel the directors to take appropriate action or to obtain appropriate relief without their cooperation, for the protection of the corporation or its stockholders. A stockholder's suit is a familiar illustration of those class actions. and there are class actions of creditors, and many other kinds.

These different class actions have different methods of procedure in the different States. The procedure is complex and full of technical difficulties. The purpose of this rule is to make the procedure in such cases as simple as the procedure in such cases can be. The rule does not deal with the substantive rights of the parties in class actions. That would be a matter of substantive law. It deals purely with the procedure.

One of the difficult things to deal with in class actions is what our New York friends call a "strike suit." I find that it means a suit brought to annoy or harass somebody. Class suits lend themselves to that sort of trouble, but, of course, most of them are legitimate efforts to redress wrongs and secure justice. Therefore, you have to deal rather carefully with that class of suits and see that justice is not denied to the honest suitor and that the unscrupulous may not prey upon the innocent. So there are provisions here to safeguard class actions and, among others, provisions touching dismissal. They cannot be brought and then dismissed and brought again somewhere else, but the dismissal must be by leave of the court.

There are also provisions, taken from the present Federal Equity Rules, limiting the action to plaintiffs who were stockholders at the time of the transaction of which they complain, so that an adventurer may not purchase stock and then challenge transactions which took place before he became a stockholder. This provision is taken from Equity Rule 27.

Rule 25, Substitution of Parties, deals with another thing which is full of trouble. This matter of the substitution of parties arises when a party plaintiff or defendant dies while the suit is pending, and the question arises, Does the right of action survive or the liability continue? The rule does not deal with the question of substantive law as to when the right survives or the liability continues, but if it does. survive, the rule deals with the method by which you can submit those questions to the court and when the question of survivorship is settled, the method by which you can proceed with the original suit.

There is another phase of substitution which has given rise to a trouble, and that is where an officer is sued as a representative of the Government or of a municipal corporation and his term of office expires, or he dies. The question arises, Can you go on with the case? Can you bring in his successor in office, and go on with the action? All of those things have been very troublesome.

All the United States statutes in regard to officers and the continuance of suits against officers have been collected and considered. Conflict with those statutes has been avoided. State statutes also have been considered and some of the best provisions of them have been utilized. The rule is an effort to bring order out of disorder, simplicity out of confusion, without changing substantive law.

That brings me to the chapter on depositions and discovery. Rules 26 to 32 deal with depositions. I suppose there is nothing that is more difficult to do than to take certain kinds of depositions in the Federal court. The Federal court has built up by statute a system of taking depositions that has to be followed very accurately.

Here are the different kinds of depositions that have to be taken. You may have to take a deposition before there is any suit brought. You know there is going to be a suit, but you cannot compel it to be