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3. Reformed Procedure Bill. This bill was reported favorably in the House of Representatives as originally recommended by this Association, but when your committee was heard before the Judiciary Committee of the Senate objection was taken by Senators to the second paragraph of the bill, which read as follows:
The trial judge may in any civil case submit to the jury in connection with the general verdict specific issues of fact arising upon the pleadings and evidence, reserving any question of law arising in the case for subsequent argument and decision, and he and any court to which the case shall thereafter be taken on writ of error shall have the power to direct judgment to be entered either upon the verdict or upon the special findings if conclusive upon the merits.”
One of the objections was on the merits. The Senator making it had found in one of the states where the practice of submitting special questions to the jury prevailed, that so many questions were submitted that the jury were perplexed and confused. He thought the system worked badly. Another Senator had found in his state that the system worked well and favored it strongly, but in his opinion it was a matter that should be left to the regulation of each state. Under the Practice Act, the courts of the United States in each district follow as nearly as may be the local practice in the courts of the state. The Senator thought that in every state where this practice was approved and prevailed, the federal courts would follow it without any act of Congress and he was opposed to creating such a practice in states where the local sentiment was against it. We found that there was no probability of passing the bill if this paragraph were to remain in it. So after consultation with the Senators from New York, Mr. Root and Mr. O'Gorman, who both were much interested in the bill and supported it cordially, we came to the conclusion that it was advisable to make no objection to reporting the bill with the omission of this last paragraph. It was accordingly so reported in the House on the 12th of December, 1914. It went to the Senate and was reported favorably on the 5th of January, 1915. But the legislative time was so closely occupied with other legislation, particularly the shipping bill, that it became impossible to bring the bill to a vote without unanimous consent. Objection was made on the ground that the legislation was too important to go through without full consideration and the bill therefore
did not come to a vote. It is unnecessary for us to repeat the arguments which have been fully presented in previous reports in favor of the reform embodied in this third bill. We recommend that the committee be instructed to take measures to secure its introduction at the next session of Congress and to take such steps as it shall deem expedient to procure its passage. A copy is appended and marked Schedule C.
4. Your committee is of opinion that the proposition to provide a way in which in every circuit questions of fact can be submitted to the jury for special consideration and special verdict, should not be given up. But we think that the first part of the bill as proposed by the Association is so important that the two reforms should not be embodied in one bill. We therefore recommend for consideration to the Association a fourth bill which would provide a convenient method for taking a verdict upon specific questions of fact arising on the trial, and thereby enabling the appellate court to dispose of the case finally without the delay and expense of a new trial. This proposed bill is marked Schedule D.
In the Commonwealth of Massachusetts an act has been passed which was approved April 19, 1915, which provides for an alternative verdict. This was drawn with reference to the decision of the United States Supreme Court in Slocum vs. New York Life Insurance Co., 228 U.S. 364. This subject of an alternative verdict has been discussed before the Judiciary Committee of the House of Representatives. It was not then received with favor and your committee is of opinion that it would be inadvisable to attempt to bring this particular measure before the attention of Congress at present. We however submit for the information of the Association a copy of the bill referred to, which is marked Schedule E.
We have been unable to interest Congress in the bill providing for a reduction of the fees and mileage of United States marshals, which was Schedule E in our report presented in October last.
Your committee recommend for adoption the following resolution:
Resolved, That the Special Committee to Suggest Remedies and Formulate Proposed Laws be continued with the powers heretofore conferred upon it, and that it be instructed to take
such steps as it shall deem expedient to procure the passage of the bill, of which a copy is annexed to this report and marked Schedule C, and also the bill in relation to the fees and mileage of United States marshals referred to in the report of which a copy marked Schedule E was annexed to the report presented in October.
EVERETT P. WHEELER, Chairman,
To AMEND AN ACT ENTITLED “An Act To CODIFY, REVISE AND AMEND THE LAWS RELATING TO THE JUDICIARY,”
APPROVED MARCH 3, 1911. Be it enacted by the Senate and House of Representatives in Congress assembled, That the act entitled “ An act to codify, revise and amend the laws relating to the judiciary, approved March 3, 1911, be, and the same is hereby, amended by inserting after section 274 thereof three new sections, to be numbered, respectively, 274a, 274b and 274c, reading as follows:
“ SEC. 274a. That in case any of said courts shall find that a suit at law should have been brought in equity or a suit in equity should have been brought at law, the court shall order any amendments to the pleadings which may be necessary to conform them to the proper practice. Any party to the suit shall have the right, at any stage of the cause, to amend his pleadings so as to obviate
the objection that his suit was not brought on the right side of the court. The cause shall proceed and be determined upon such amended pleadings. All testimony taken before such amendment, if preserved, shall stand as testimony in the cause with like effect as if the pleadings had been originally in the amended form.
Sec. 274b. That in all actions at law equitable defenses may be interposed by answer, plea or replication without the necessity of filing a bill on the equity side of the court. The defendant shall have the same rights in such case as if he had filed a bill embodying the defense or seeking the relief prayed for in such answer or plea. Equitable relief respecting the subject matter of the suit may thus be obtained by answer or plea. In case affirmative relief is prayed in such answer or plea, the plaintiff shall file a replication. Review of the judgment or decree entered in such case shall be regulated by rule of court. Whether such review be sought by writ of error or by appeal the appellate court shall have full power to render such judgment upon the records as law and justice shall require.
“Sec. 274c. That where, in any suit brought in or removed from any state court to any district court of the United States, the jurisdiction of the district court is based upon the diverse citizenship of the parties, and such diverse citizenship in fact existed at the time the suit was brought or removed, though defectively alleged, either party may amend at any stage of the proceedings and in the appellate court upon such terms as the court may impose, so as to show on the record such diverse citizenship and jurisdiction, and thereupon such suit shall be proceeded with the same as though the diverse citizenship had been fully and correctly pleaded at the inception of the suit, or, if it be a removed case, in the petition for removal."
Approved March 3, 1915.
TO AMEND AN ACT ENTITLED “ AN ACT TO CODIFY, REVISE AND AMEND THE LAWS RELATING TO THE JUDICIARY,”
APPROVED MARCH 3, 1911. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 237 of chapter 10 of an act entitled “An act to codify, revise and amend the laws relating to the judiciary,” approved
March 3, 1911, is hereby amended by adding thereto the following:
" It shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its review and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court, although the decision in such case may have been against the validity of the state statute or authority claimed to be repugnant to the constitution, treaties or laws of the United States, or in favor of the title, right, privilege or immunity claimed under the constitution, treaty, statute, commission or authority of the United States.
Approved December 22, 1914.
SCHEDULE C. SIXTY-THIRD CONGRESS, THIRD SESSION. CALENDAR No. 745.
H. R. 12750 (REPORT No. 853).
IN THE SENATE OF THE UNITED STATES.
DECEMBER 17, 1914. Read twice and referred to the Committee on the Judiciary.
January 5, 1915. Reported by Mr. O'Gorman, without amendment.
RELATING TO PROCEDURE IN UNITED STATES COURTS. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 269 of the Judicial Code, approved March 3, 1911, be, and the same is hereby, amended by adding at the end thereof the following:
“No judgment shall be set aside or reversed or a new trial granted by any court of the United States in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire cause, it shall appear that the error complained of has injuriously affected the substantial rights of the parties.”