A Practical Program of Procedural Reform
455
real interest in meeting his adversary's
or whom, in case of constitutionality,
case."
the court by general rule or otherwise
This principle has been approved twice by the American Bar Association
may determine to be entitled to notice, and to present the question of construc
by more than a two-thirds majority of those voting and was embodied in the recent proposals of the judges of Cook County.‘8
tion or constitutionality to the court without the fiction of a "test case." An excellent example of the possibilities
X. The jurisdiction to prevent con troversy by construction of instruments should be extended to all cases upon deeds, wills, contracts or other instruments upon
which questions of construction arise or the rights of parties are doubtful; it should also be extended to questions of statutory construction and constitutionality by a simple proceeding analogous to the "originating summons" of the English practice.
of such a jurisdiction is furnished by the English practice of "originating summons" under Order 540. That
order provides that "any person claiming to be interested under a deed, will, or other written instrument, may apply by originating summons for the deter
mination of any question of construction arising under the instrument and fora declaration of the rights of the persons
interested." The wide scope of this practice has obvious advantages in preventing long and expensive litigation.
So long as only questions for the court are involved and there is nothing calling for a jury, the jurisdiction to
construe instruments ought not to be confined to directions to trustees and cases where equitable interests are in volved. The preventive jurisdiction should be extended at this point. It should not be necessary to break a
contract in order to ascertain what it means. It should not be necessary for
But its simplicity of form is also note worthy. Instead of the formal pleadings of a suit for construction, the summons
reads : "Let within eight days after ser vice of this summons on him, inclusive of the day of such service, cause an appearance to be entered for him to this summons, which is
issued upon the application of ,who claims to be [state the nature of the claim] for the determination of the following ques tions: [State the questions.]"
a law-abiding citizen to break the law
in order to find out what are his duties or to ascertain the constitutionality of a statute. It ought not to be that unless a case for a bill of peace can be
made, often presenting the unseemly spectacle of one department of the government tying up another, one must submit to an unconstitutional
XI. An appeal should be treated as a motion for a rehearing or new trial or for vacation or modification of the order or judgment complained of, as the cause may require, before another tribunal. At common law, after trial at nisi
prius, the cause was heard by the court statute or else to an arrest.
It should
be possible to notify all persons who are “7 Cf. Wigmore, Pocket Code of Evidence. p. xi and rule 23; R rt of Committee on Sim lification of Procedure 0 Association of the Bar 0 the City of New York, pp. 7-8; Kansas Rev. Code Civ. Proc., 5307; Rep. Am. Bar Ass'n, xxxiii, 542-546; paper of Everett P. Wheeler, 21 Green Bag, 57; 4 ll. Law Rev., 505-506. ‘a 3 Ill. Law Rev., 586.
in bank upon rule for a new trial or motion in arrest or for judgment non
obstante.
In that simple proceeding
and not in the writ of error, an inde pendent proceeding of a formal and technical character, is the true analogy
for appellate procedure.
Unhappily.
