the old equity rules about discovery and make them applicable to the united rules. Mr. CHANDLER. Do you not have to preserve the common law all the time under that seventh amendment to the Constitution—you cannot get away from that? Mr. TOLMAN. It it expressly reserved. The right of trial by jury as at common law must be preserved inviolate. Mr. CHANDLER. If you reexamine that trial by jury you have to do that according to the rules of common law. Mr. TOLMAN. The seventh amendment does not apply to evidence, depositions, discovery, or any other proceeding except the trial itself. Mr. CHANDLER. Rule 35 deals with physical and mental examinations of persons. Mr. TOLMAN. Yes. Mr. CHANDLER. That impressed me as being contrary to the common law. Mr. TOLMAN. Yes, it is. It is a change in the law of evidence. Mr. CHANDLER. You think there is no doubt about the right to adopt that rule? The common law, as I understand it, contemplates that the judges control the trials of cases. Does not this rule infringe there? Mr. TOLMAN. No; because changes in the rules of evidence have been going on ever since the beginning of our judicial system. The law of the competency of witnesses, and many other branches of the law of evidence have been changed over and over again. Mr. MCLAUGHLIN. In rule 35, section (b), it provides as follows: If requested by the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. That means, for instance, if the plaintiff is examined by the defendant's physician, the plaintiff, or his counsel, may require the defendant's physician to furnish him a copy of the report. Mr. TOLMAN. Yes. What this means is that the expert witnesses who made the examination in pursuance of the orders must give their reports to the other side so that each side may have the opportunity to look at the other's reports. Mr. CHANDLER. Rule 39 (a), Major Tolman, impressed me as perhaps an avoidance of the seventh amendment. Of course you have studied that very carefully. Mr. TOLMAN. You mean the requirement about demanding the right to a trial jury? Mr. CHANDLER. Yes. Mr. TOLMAN. Well, that is the law in many of the States, and it has many times been sustained. Mr. CHANDLER. As to the "Rule of Decisions" Act, in title 28 of the code, paragraph 725, is that statute overruled entirely? Mr. TOLMAN. That statute does not apply to procedure; it is substantive law. The "Rule of Decision" Act is not affected by these procedure rules. Mr. CHANDLER. That is what I wanted to be sure about. 60098-38-ser. 17-10 Mr. CHANDLER. There is another rule that impressed me in reading them through. I was not here when you passed that point, and that is rule 44 (a) about the authentication of a copy of an official record. Is that rule needed badly? That is something I am not familiar with. Mr. TOLMAN. I told the committee my experience with that rule. There are many different statutes that tell many different ways of proving official records in the various United States departments. This puts them all together into one. Mr. CHANDLER. This codifies them? Mr. TOLMAN. Yes. Mr. CHANDLER. With reference to rule 50, that rule changes the present law where both sides move for a directed verdict and there is no reservation of right to go to the jury. You have changed that rule? Mr. TOLMAN. We have changed it to that extent. Mr. CHANDLER. I think it is an excellent change. Mr. TOLMAN. The fellow that does not happen to know that he must make formal reservation of his right to put in further evidence gets tripped up occasionally, but this rule puts the Federal specialist and the every-day lawyer on an equal basis. Mr. CHANDLER. Referring to rules 57 amd 58, do you think those two rules in any way amend the Federal act for declaratory judgment? It seems to me that they might amend that act in some way. I was reading it over and made that memorandum. Mr. TOLMAN. I think that this retains section 274 (d) of the Judicial Code without change, but simply applies these rules to it. Mr. CHANDLER. The question came up with reference to rule 65 (e) in which it was stated that the clause "relating to temporary restraining orders and preliminary injunctions in actions affecting employer and employee" might be taken out, but there was no general discussion on that question. What was the final decision on that point? Mr. WEAVER. Mr. Padway for the American Federation of Labor discussed that matter. Mr. TOLMAN. Yes; they are to come over and talk to me about that. I will tell them these words do not modify but merely describe the acts which relate to temporary restraining orders and preliminary injunctions, among other things. This is part of the description of the act. It is not a limitation. Mr. CHANDLER. The labor representatives were here before us, and they were apprehensive as to whether that took in the whole of the LaGuardia Act. Mr. TOLMAN. I am going to try to assure them that they are to be fully protected against the interpretation which they fear. Mr. CHANDLER. The Norris-LaGuardia Act provides for permanent injunctions as well as temporary injunctions. Mr. MCLAUGHLIN. Under rule 41, section 2, it is provided that "an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper." This rule leaves to the discretion of the trial court, does it not, Major Tolman, the determination of the question as to whether the plaintiff may in his own right and independently of stipulation dismiss his action without prejudice, after the service of the answer? Mr. TOLMAN. You have here a very difficult thing with very many different considerations on one side or another. You cannot permit a man to bring the same suit month after month without limit. If you study this rule, I think you will find that the absolute right to dismiss is rather liberal. There are cases, however, where the court must decide whether or not the unconditional right to dismiss exists. The dismissal at the plaintiff's instance means a dismissal without prejudice. Mr. MCLAUGHLIN. Certainly. Mr. TOLMAN. But if the answer is served and the case is on trial and he cannot go on, the court will then dismiss the case on the court's order, upon such terms and conditions as the court deems proper. Mr. ROBSION. And that becomes a final order? Mr. TOLMAN. Yes; that becomes a final order, but unless otherwise specified in the order, it is without prejudice. The last sentence in rule 12 (a) so provides. If this provision does not work well in practice it certainly will be promptly cured. Mr. WEAVER. In my State we can take a nonsuit, as we call it, even though the defendant has filed an answer, provided the answer does not set up an affirmative counterclaim. Mr. TOLMAN. Yes. Mr. WEAVER. Then, of course, the other side is the plaintiff in court. Mr. TOLMAN. Yes. Mr. WEAVER. But that right is exercised very freely in our State courts. Mr. TOLMAN. Yes. Mr. WEAVER. Under this rule after the answer is filed, why, he must go to the court for an order. Mr. TOLMAN. Yes; he must go to the court for an order. Mr. WEAVER. I was just wondering why it was made so restricted. Mr. TOLMAN. Is it not according to the theory of the law, usually, that every dismissal is by order of the court? That is the original way they used to dismiss cases. The CHAIRMAN. The plaintiff has brought the defendant up there to court and he ought to try his case unless he has a good reason for not doing so. Mr. TOLMAN. Yes, sir; that is one side of it. Another view is a man brings his suit, and finds he has started off on the wrong foot and cannot prove the claim, ought he not have a right to start over again? The CHAIRMAN. Yes; he can amend his pleadings. Mr. MCLAUGHLIN. Ás a matter of fact, are you not leaving it entirely to the court under this rule 41, section 2? Mr. TOLMAN. No; not entirely. It says in paragraph (1): Subject to the provisions of rule 23 (c) and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (1) by filing a notice of dismissal at any time before service of the answer. Mr. MCLAUGHLIN. That is merely a withdrawal of the petition; you might say. Mr. TOLMAN. Well, it is a dismissal of the action, is it not? Mr. MCLAUGHLIN. Yes. Mr. TOLMAN. The order will then be "action dismissed on the mo tion of the plaintiff.” Mr. MCLAUGHLIN. Yes. Mr. TOLMAN. And then it may be dismissed by stipulation of the parties at any time. Mr. MCLAUGHLIN. That requires action of both parties, does it not, Major? Mr. TOLMAN. Yes; but we have to have that. You have to have the right to dismiss by stipulation. Mr. MCLAUGHLIN. What I am asking, Major, is, if these rules are adopted may the plaintiff at any time dismiss his action if he sees fit to do it unqualifiedly? Mr. TOLMAN. Before service of the answer; yes. Mr. MCLAUGHLIN. And after answer, "No"? Mr. TOLMAN. No; without an order of court. Mr. WEAVER. Why not after the answer unless there is a counterclaim? Mr. TOLMAN. This rule does not allow dismissal after a counterclaim is filed unless the counterclaim can remain pending for independent adjudication by the court. Mr. WEAVER. Suppose I get to trial, and the witnesses disappoint me as to what they will testify to, I will say, "If your Honor please, I will take a nonsuit." I cannot do it? Mr. ROBSION. Let me name a case in which we are in a trial and going along good, and when we met in court the next morning, why the witness that connected the case up and made it all right in court had disappeared. Mr. TOLMAN. He ran out on you? Mr. ROBSION. He ran out on me, yes. Now, there you could not proceed. Mr. CHANDLER. Was he under subpena? Mr. ROBSION. He was under subpena, yes. Then in another case, which I tried myself, the plaintiff had come up to the point where his client came into court on the second day of the trial and had neglected to bring the deed that connected up his title. So, he was right up against it, and he did not have time to go 50 miles to get his deed, and he was right in the middle of the trial. Mr. CHANDLER. It seems to me that would be grounds for a continuance, surprise of that character. Mr. ROBSION. But in a case like that should not the plaintiff have the right to dismiss his case without prejudice? Mr. TOLMAN. Yes; he should. The court is given power to allow it, and if he does allow it, the rule declares that such a dismissal shall be without prejudice. Mr. ROBSION. They must sustain it? Mr. TOLMAN. Of course, in every case you mention the court would give it. Mr. CHANDLER. Mr. Chairman, the Chicago Bar Association sent to the committee members a statement in opposition to H. R. 8892. The statement is very well prepared by the committee on Federal court procedure of that bar association, and I would like to ask that that be placed in the record. The CHAIRMAN. All right, Mr. Chandler. REPORT OF COMMITTEE ON FEDERAL COURT RULES OF THE CHICAGO BAR AssoCIATION IN REGARD TO RAMSAY BILL, H. R. 8892 Pursuant to the request of the board of managers, the committee on Federal court rules has considered the Ramsay bill above mentioned, and submits its report as follows: The most important provisions of the bill are contained in the portion thereof beginning at line 22 on page 2 and extending through line 17 on page 3, proposing an amendment of title 28, section 724, of the Code of Laws of the United States of America, and the committee recommends opposition to the bill because of the provisions of said proposed amendment of section 724. Section 724 at present is the conformity provision of the United States statutes; namely, it provides that the practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the 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 in the State within which such district courts are held. The proposed amendment reenacts the conformity provision and then proceeds as follows: "and that, upon the trial of any case, civil or criminal, before a jury, in any district court of continental United States, or in any other Federal court of the continental United States, authorized to try cases with the aid of a jury, the form, manner, and time of giving and granting instructions to the jury shall be governed by the law and practice in the State courts of the State in which such trial may be had, and the judge shall make no comment upon the weight, sufficiency, or credibility of the evidence or any part thereof, or upon the character, appearance, demeanor, or credibility of any witness or party, except as comment is authorized in trial of such cases by the law and practice in the State courts of the State where such a trial is had." The provision which is added is similar to that contained in H. R. 4721 in the Seventy-fifth Congress, as to which this committee reported to the board of managers on July 20, 1937. In that report the members of the committee expressed themselves as opposed to any course which might result in domination of juries or interference with their proper liberty of action, but stated further that in the interest of the best administration of justice and in the light of the satisfactory manner in which the Federal court judges have exercised their responsibility in connection with instructions to juries and comments on the evidence, the committee felt that the existing procedure should be retained in the Federal courts, notwithstanding any variances from State court practice. The committee reiterates this opinion with respect to the present Ramsay bill, H. R. 8892. Under the authority of Capital Traction Co. v. Hof (174 U. S. 1, 43 L. ed. 873), and later Federal court decisions which quote the Capital Traction Co. case with approval, the committee also regards it as questionable whether the proposed provision as to jury instructions and comments on the evidence would be constitutional. Another circumstance in connection with the present Ramsay bill gives the committee concern and furnishes an additional reason for opposition to the bill. The proposed rules of civil procedure for the district courts of the United States have recently been approved by the Supreme Court and presented to Congress by the Attorney General. The act of June 19, 1934 (ch. 651), under which the proposed rules have been formulated, provides that after they shall take effect "all laws in conflict therewith shall be of no further force or effect." If the proposed rules are adopted, one of the laws that will thereafter "be of no further force or effect" is the conformity provision contained in section 724, title 28. It would therefore be at least confusing and might lead even to construction or contention that Congress declares its rejection of the proposed rules if, at this session of Congress to which the rules have been submitted, legislation is enacted renewing the conformity provision. This committee is heartily in accord with the proposed Federal court rules and recommends opposition to any action by Congress which conflicts in any manner with the approval thereof. It has already gone on record to the effect that the proposed rules not only provide an excellent procedural structure for the district courts of the United States but also create standards in civil procedure which will be of inestimable value for other courts. It therefore recommends endorsement of the rules and opposition to any action of a contrary nature. The bill in its title purports to change and modify the rules adopted by the Supreme Court, but nowhere in the bill itself is there any mention of the rules. The present Ramsay bill, H. R. 8892, contains a number of additional provisions, only one of which, a proposed new section 430 C of title 28, calls for any special comment. The others, a proposed amendment of section 412 of title 28, in regard to drawing names of jurors; new section 430 B of title 28, in regard to place of trial; and new section 430 D of title 28, in regard to the appointment of shorthand reporters for judges, all relate to details of court administration and convenience, as to which the committee makes no recommendation. The proposed new section 430 C provides that the capacity of an individual other than one acting in a representative capacity to sue or to be sued in the United States district courts shall be determined by the law of his domicile; and continues as follows: "and, for the purpose of determining citizenship under this section, a corporation shall |