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sal or non-suit; 77 form of a verdict; 78 manner of entering and recording judgment, including provisions for the entry of judgment against one or more defendants; 79 assessment of damages after judgment by default; 80 the right to open judgment by default ; 81 but in the Second Circuit a default was opened in a case where this would not have been permitted by the State practice; 82 and it has been held that a Federal court at common law can not set aside, after the term of entry, a judgment by default,83 although the State practice authorizes such an order; practice upon application to open a default ; 84 suspension of judgment pending writ of error. 85

In following a State statute, the Federal courts usually read the word "county" as judicial district.” 86 A State stat

submission of the case to the jury, it was held to be error to refuse to allow the plaintiff to do this before a peremptory instruction for the defendant, although the motion was not made until after the judge had said that he would sustain the defendant's motion for a verdict. Knight v. Illinois Cent. R. Co., C. C. A., 180 Fed. 368. See infra, $ 473g.

77 Central Transp. Co. v. Pullman's Palace Car Co., 139 U. S. 24, 29, 39, 11 Sup. Ct. 478, 481, 35 L. ed. 55.

78 Glenn v. Sumner, 132 U. S. 152, 156, 10 Sup. Ct. 41, 33 L. ed. 301; Knight v. Illinois Cent. R. Co., C. C. A., 180 Fed. 368, 372.

79 Sawin v. Kenny, 93 U. S. 289, 23 I. ed. 926; Knight v. Illinois Cent. R. Co., C. C. A., 180 Fed. 368, 372.

80 Loewe v. Union Savings Bank, 226 Fed. 294.

81 Brown v. Phila. W. & Br. Co., C. C. D. Delaware, 9 Fed. 183; Wylie Permanent Camping Co. v. Lynch, C. C. A., 195 Fed. 386, 388, 392, 402. But see infra, $ 481.

82 Phila. & Reading Coal & Iron

Co. v. Kever, C. C. A., 2 Ct., 260 Fed. 534, 541; certiorari denied 250 U. S. 665, 40 Sup. Ct. 213, 64 L. ed. But see the strong dissenting opinion of Manton J. As the author was of counsel in the case below, he forbears the expression of his own opinion. Contra Wylie Permanent Camping Co. v. Lynch, C. C. A., 195 Fed. 386, 388, 392, 402.

83 U. S. v. One Trunk, 155 Fed. 651. See Bronson v. Schulten, 104 U. S. 410, 26 L. ed. 797; Phillips v. Negley, 117 U. S. 665, 29 L. ed. 1013; Rio Grande Irrigation Co. v. Gildersleeve, 174 U. S. 603, 609, 43 L. ed. 1103, 1105; infra, $ 481. Contra, Hamburg-Bremen Fire Ins. Co. v. Pelzer Mfg. Co., C. C. A., 76 Fed. 479, 481; Travelers' Protective Ass 'n v. Gilbert, 55 L.R.A. 538, 111 Fed. 269, 276.

84 Brown v. Phila. W. & Br. Co., 9 Fed. 183.

85 U. S. v. Sturgis, 14 Fed. 810.

86 Lung Chung v. No. Pae. Ry. Co., 19 Fed. 254, 257; Treadwell v. Seymour, 41 Fed. 579; Miller's Adm'r v. Norfolk & W. R. Co., 41 Fed. 431.

ute authorizing an action to be brought in a firm name was not followed in an action at common law in the Federal court there held.87 A State statute allowing an association consisting of seven or more to sue and be sued in the name of one of its officers, was followed at common law in the Federal court sitting in such State,88 but not in a Federal court sitting in another State.89 A State statute providing that a county can be sued only in a specified court ; 90 or that a foreign corporation cannot sue until it has complied with certain statutory requirements, 91 or that an action cannot be brought upon a judgment without leave of the court that rendered it,92 or that a special appearance for the purpose of objection to the jurisdiction is equivalent to a general appearance, 93 or regulating the practice in applying for, and giving the right in certain cases to pestponements of trials or to continuances,94 is not binding on a Federal court. The fact that the State practice permits an original application by a municipal bondholder for a mandamus does not deprive a Federal court of jurisdiction over an action by him to recover a judgment which can only be enforced by such a writ.95 It has been held that a motion to dismiss an action at common law as frivolous may be made at any time. 96 Exemptions from service of process have been discussed in the chapter on subpænas. 97

$ 454. Common law pleading. In general. In actions at common law in civil causes, the District Courts of the United

87 Adams v. May, 27 Fed. 907.

88 Hoey v. Coleman, 46 Fed. 221, 225. See supra, $ 48.

89 Chapman v. Barney, 129 U. S. 677, 682, 32 L. ed. 800, 801. See supra, $48.

90 Cowles v. Mercer County, 7 Wall. 118, 19 L. ed. 86; Lincoln County v. Luning, 133 U. S. 529, 33 L. ed. 766; Chicot County v. Sherwood, 148 U. S. 529, 37 L. ed. 546.

91 Bank of British N. A. v. Barling, 44 Fed. 641; aff'd as Barling v. British Bank of N. A., C. C. A., 50 Fed. 260,

92 Phelps v. O'Brien Co., 2 Dill. 318; Union Tr. Co. v. Rochester & P. R. Co., 29 Fed. 609; supra, & 83.

93 So. Pac. Co. v. Denton, 146 U. S. 202, 209, 36 L. ed. 943, 945. Cf. Mexican C. Ry. Co. v. Pinckney, 149 U. S. 194, 37 L. ed. 699.

94 Texas & Pac. Ry. Co. v. Nelson, C. C. A., 50 Fed. 418; infra, $ 473a.

95 Shepard v. Tulare, 94 Fed. 1.

96 O'Connell v. Mason, C. C. A., 132 Fed. 245; Webb v. Fisher, 109 Tenn. 701, 60 L.R.A. 791, 72 S. W. 110.

97 Supra, § 167.

States follow the forms and rules of pleading observed in the courts of the States where they are held, except in those particulars that are regulated by Federal statutes. This rule applies: as regards the verification of pleadings,2 the time when pleadings must be served, after the return day, the manner of service of pleading 5 and the time within which pleadings may be amended as of course. It has been held that the State law concerning what constitutes a fatal variance between the facts and the pleadings must be followed. The extent to which pleadings may be amended is not dependent upon the State practice 8 but in determining the effect of an amendment the decisions of the State courts should ordinarily be followed.'

The courts should construe pleadings as alleging what they fairly would convey to an ordinarily intelligent lawyer by a fairly exact use of English speech.10

$ 454a. Plaintiff's pleadings at common law. The designation of the complaining party as “plaintiff” or as “complainant” has no effect upon the determination whether the action is brought in law or in equity. The charge that fraud and concealment exists or that there has been a conspiracy in the matter, does not prevent an action for the payment of money

8 454. 10. S. R. S., $ 913; Moy v. Mercer County, 30 Fed. 246; Myers v. Cunningham, 44 Fed. 346 per Ricks, J.; Marvin v. C. Aultman & Co., 46 Fed. 338, 339.

2 West v. Home Ins. Co., 18 Fed. 622; Cottier v. Stimson, 18 Fed. 689.

3 Ricard Inhabitants New Providence, 5 Fed. 433.

4 Ewing v. Burnham, 74 Fed. 384. See 8 455, infra.

5 Wilson v. Fine, 38 Fed. 789.

6 Rosenbach v. Dreyfuss, 1 Fed. 391; Hannum v. Jerome, 184 Fed. 179. But see Erstein' v. Rothschild, 22 Fed. 61.

7 Norfolk & A. Terminal Co. v. Rotole, C. C. A., 4th Ct., 179 Fed. 639, 645, where it was said that an application to amend upon the trial

should have been granted. See Kansas City Southern R. Co. v. Kaw Valley Drainage District, 233 U. S. 75. Central Vermont Ry. Co. v. White, 238 U, S. 507, 513; Truckee River General El. Co. v. Benner, C. C. A., 211 Fed. 79.

8 Erie R. Co. v. Schmidt, C. C. A., 255 Fed. 513; Manitowoc Malting Co. v. Fuechtwanger, 169 Fed. 983. But see Re Griggs, C. C. A., 233 Fed. 243.

9 Central Vermont Ry. Co. White, 238 U, S. 507, 513.

10 Kansas City Southern R. Co. v. Kaw Valley Drainage District, 233 U. S. 75.

$ 454a. 1 Motley, Green & Co. v. Detroit Steel & Spring Co., 161 Fed. 389.


or for the recovery of real or personal property from being prosecuted upon the common law side of the court.2

The right of the plaintiff to reply 3 and the matter which can be set up in a reply, such as the tolling of the Statute of Limitations, 4 are governed by the State practice.

The opening of a default upon condition that defendant plead within a specified time deprives him of the right to object because he had no notice of the plaintiff's pleading. The plaintiff may so allege the facts as to leave himself free to evolve any theory at the trial which is supported by them. When his cause of action depends upon an express contract his part of which has been performed and nothing remains to be done except payment by defendant, he may set forth the common counts in general assumpsit and prove the special contract as the measure of his damage. The facts showing that the plaintiff has sustained damages must be averred. If such facts are alleged, and a specific sum is claimed, an averment that damages have been sustained, is not required. It has been held that annexing to a complaint, as an exhibit, a copy of the contract sued upon, with a reference to the same in the body of the pleading, is not equivalent to positive allegations in the complaint of the terms of the contract according to their legal effect or in hæc verba.10 And that a suit upon a special contract not executed must be on a count setting out the special contract; but when the special contract has been executed the common counts are sufficient. 11

2 South Penn Oil Co. v. Miller, C. C. A., 175 Fed. 729.

8 Hartley v. Lapidus & Holub Co., C. C. A., 216 Fed. 92.

4 Boatmen's Bank of St. Louis, Mo., v. Fritzlen, 221 Fed. 145.

5 Buckeye Cotton Oil Co. v. Sloan, C. C. A., 250 Fed. 712.

6 Gimbel Bros. v. Adams Express Co., 217 Fed. 318.

7 Dermott v. Jones, 2 Wall 1, 17 L. ed. 762; Dubois v. Canal Co., 2 Wendell (N. Y.) 285; Ward, J.; in dissenting opinion, Cowen Co.

Houck Mfg. Co., C. C. A., 249 Fed. 285, 289.

8 U. S. v. Bell, 127 Fed. 1002. See Maryland Casualty Co. v. Price, C. C. A., 231 Fed. 397.

9 Murphy V. Mitchell, 245 Fed. 219. See De St. Aubin v. Paul Guenther, 232 Fed. 411.

10 Penrose v. Pacific Mutual Life Ins. Co., 66 Fed. 253.

11 Chesapeake & 0. C. Co. Knapp, 9 Peters, 541, 563, 9 L. ed. 222, 230; Dawes & Co. v. Peebles' Sons Co., 6 Fed. 856, 858.


In an action upon a foreign judgment the State practice must be followed 12

In an action upon a judgment of a State court, an allegation that such court was one of general jurisdiction is sufficient, even when the judgment is one for divorce and alimony.13

An allegation that a postmaster has not been removed according to law, is a conclusion of law which should be disregarded.14 An averment that the Postmaster General has assumed the authority to remove a postmaster, of his own act and decision, without facts showing that the removal was unauthorized, does not negative the legality of the removal; since it will then be presumed, that the Postmaster General acted by direction of the President. 15

In a complaint to recover back subscriptions to stock obtained by fraud; allegations that the corporation was never legally organized, nor authorized to transact business, because its capital was never paid in and that was insolvent, are not inappropriate.16

$ 454b. Parties in actions at common law. By the Judicial Code which reenacts the Act of February 24, 1839, and the Revised Statutes 2 in this respect: "When there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process nor voluntarily appearing to answer; and non-joinder of parties who are not inhabitants of nor found within the district, as aforesaid, shall not constitute matter of abatement or objection to the suit.'' 3

In an action against parties jointly liable, those who cannot

12 Cruz v. O'Boyle, 197 Fed. 824.

13 Cotter v. Cotter, C. C. A., 225 Fed. 471.

14 Porter v. Coble, C. C. A., 246 Fed. 244, 245.

15 Ibid.

16 Kelton v. Du Pont, 256 Fed. 546.

$ 454b. 136 St. at L. 1101.
2 U. S. R. S., $ 737.

3 8 50, 36 St. at L. 1101, Comp. St. 8 1032. See supra, g 120.

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