When the roll was called it was found that six of the ten county bar associations in that district had delegates present. President Chester M. Turner of the federation presided and with such men as Judge Wead of Peoria, Judge Puterbaugh of Peoria, Judge Thompson of Galesburg, Judge Lardin of Ottawa, and M. J. Daugherty of Galesburg taking part in the discussions, the meeting was one of the most profitable held under the auspices of the State Association.

As result of the discussions the federation went on record as being in favor of amending the present statutes so as to make a summons returnable within a fixed number of days instead of to a term of court, but opposed an amendment allowing a summons to be served by other than the sheriff. The federation also favored the bill prohibiting corporations from assuming to practice law, and the proposed bill providing for sale of real estate after the equity of redemption has run. The amending of the administration act so that a foreign heir can nominate an administrator, and the bill amending the same act to validate wills which have been probated without the appointment of a guardian ad litem were unanimously approved. A discussion of the abolition of the rule in Shelley's case resulted in a vote of twenty-four to six in favor of abolishing the rule. The proposed bill to prevent destruction of contingent remainders was approved by a fifteen to thirteen vote.

An interesting discussion was had over the recent ruling of some of the circuit judges that the last public election notice in chancery proceedings made within less than forty days of the term to which the summons was returnable must be made in the last regular publication issued before the term. The board of governors of the Illinois State Bar Association were requested to see if the uncertainty resulting from such decisions cannot be cleared by a legislative enactment.

The attention of the federation was also brought to the fact that the law requiring posting of notices should be revised, as there is no further occasion for the requirement that notices should be posted in the most public place in the county, and it was suggested that an act requiring notices to be posted at the court house and at the premises involved, in addition to the customary newspaper publications, should be sufficient. As one attorney expressed it, "the present law makes more perjury than any other act on our statute books."

The following officers were elected for the ensuing year: President, Chester M. Turner, Esq., of Cambridge; vice-president, W. G.

McRoberts, Esq., of Peoria; secretary and treasurer, Wallace W. Black, Esq., of Lacon; member of state executive committee, Hugh E. Wilson, Esq., of Peoria; executive committee: Carey R. Johnson, Esq., Princeton; Cornelius Reardon, Esq., Morris; R. C. Morse, Esq., Kewanee; M. J. Daugherty, Esq., Galesburg; A. T. Lardin, Esq., Ottawa; Jay H. Magoon, Esq., Lacon; E. Bentley Hamilton, Esq., Peoria; James E. Taylor, Esq., Hennepin; J. H. Rennick, Esq., Toulon; W. H. Foster, Esq., Eureka.

LAW

Volume XI

REVIEW

MARCH, 1917

Number 8

THE SPIRIT OF CODE PLEADING By GEORGE P. COSTIGAN, JR.1

We have had codes of procedure for many years, but it is only recently that we have paused to consider intelligently their working and their reformation. Much in the way of improvement has been suggested, yet at the same time no specific program that commends itself unreservedly to all of us has been produced. Perhaps after all it is not the gun that is inefficient but the man behind the gun. Perhaps it is not the code that is at fault, but instead, it is the mishandling of it, the inefficient manipulation and application of it, that is to blame for what annoys us about its working. Let us pause, then, to consider just what changes in pleading the code was intended to accomplish, just to what extent and why it failed, if it did fail, to accomplish its aim, and just how lawyers and judges may proceed to make the spirit of code pleading animate its embodi

ment.

At the very start the writer may, perhaps, set the subject in its proper light by quoting two remarks.

The first was made by a Denver lawyer, now deceased, to a brother lawyer, who told it to the writer. It was a remark made just after Colorado had given up the common law pleading system by the adoption of the code system and when so many of the lawyers who had grown up under the old system were feeling that the law had been shaken to its foundations. The remark was in reply to an inquiry as to the course which the Denver lawyer would take in drafting his first complaint under the code. His statement was: "I shall just have my client write a letter to the judge and shall file that as the complaint." This remark, which to the lawyer who uttered it seemed to carry on its face the conclusive proof of the utter degradation and imbecility of the new system of procedure, has always seemed to the writer to be an intuitive appreciation of the real spirit of the code. Had the courts but realized that the

1. Professor of Law in Northwestern University.

plaintiff's complaint was in effect a letter to the judge and to the opposite party designed to set out the plaintiff's grievance sufficiently for the judge and the opposite party to grasp the nature of that grievance and for the opposite party to set out in his explanatory letter to the judge his denial or justification of his acts, how much of technicality would have been avoided!

The other remark was quoted by Mr. Justice Stephen in an article in the Law Quarterly Review. He said:

"The late Lord Wensleydale, while pitying the hard lot of a man who was ruined because his pleader had supposed his remedy to be trespass instead of case, added: 'No doubt it is hard on him. The declaration ought to have been in case. If it had been, he would have won; but if the distinction between trespass and case is removed, law, as a science, is gonegone.'

"2

That statement of Lord Wensleydale seems very foreign to a code pleader's ideas, but a little acquaintance with the code pleading cases shows that many of the judges who were entrusted with the task of interpreting and applying the code were under the influence of just such a notion. They felt that to preserve the science of law they must keep as much of the old common law pleading as they could, and they failed to interpret and apply the code in its essential spirit. Fortunately there were some judges who gave the code a sympathetic application and it looks today as if we are all going soon to unite to make civil procedure as simple and as sensible as the framers of the code intended it to be.

In order to get some idea of what should be done, it is desirable to determine just what an application of the code in its true spirit would accomplish in the way of simplifying and rationalizing pleading. We start with the proposition that the pleadings are the statements made by the parties in order to enlighten each other and the court, or court and jury, as to just what question is up for decision. They are the letters to the judge written by both parties about the transaction to be investigated. And the first thing we have to notice is that, with the exception of certain "special proceedings," such as mandamus, prohibition, quo warranto, and habeas corpus, which require special treatment, all claims to be investigated are grouped by the code in one general form of civil action with a limited series of pleading steps, i. e. all grievances of the plaintiff are presented in one form of an open letter to the judge, called a complaint or petition, and all admissions, denials and new allegations of the defendant are presented in one form of letter to the judge called 2. 1 Law Quar. Rev. 1.

an answer, answer and counter-claim, or answer and cross-complaint, and, if the code calls for one, all admissions and denials of the plaintiff to the matters in the defendant's letter are put in a reply letter by the plaintiff called a replication or reply. There may be other letters to the judge called demurrers, which say that even if what the other party says is so, he has no cause of action or has no right to bring together the different grievances which he states, or has no right to complain about the defendant alone or to complain in one action about the objecting defendant and some other defendant, etc. There may be still other letters called motions which ask for various procedural orders and preliminary relief. This one form of action has various general rules to govern it regardless of the variety of grievances presented and relief sought under it, and it was meant to be as simple as any all-embracing form of action could be made. Whether a plaintiff's cause of action was in tort or on a contract, was legal or was equitable, or whether he joined in one “letter” several causes of action, he was to be given a fair chance to get to trial on the merits, if on the face of his letter he appeared to have a cause of action, and the question of pleading was to trouble him only to the extent that he must state real grievances plainly and concisely, that he must join in the action everybody who should be joined for the case to be tried satisfactorily on its merits, that he must join only those whose interest in the controversy made it proper to join them, and that he must unite in one letter to the judge only those grievances which the code allowed to be considered together. If he stated a grievance which on its face was a sound grievance, then he was to be entitled to a trial on that grievance no matter whether he was fully advised as to the proper relief he was entitled to and asked for that relief or not. The defendant was to be given similar liberal treatment. Law and equity were to be administered by one court and in the one action, and the unessential mistakes of the pleaders were to be ignored. Pleading decisions were to be "good-natured decisions," and justice administered without unnecessary technicality was to be the immediate result. Such was the purpose sought to be served by the code.

3. It is clearly settled that "The new system has not produced, and was not intended to produce, any alteration of, nor direct effect upon, the primary rights, duties and liabilities of persons created by either department of the municipal law. Whatever may have been the nature or extent of these primary rights and duties, from whatever causes, facts, acts, or omissions they took their rise, whether they were denominated legal or equitable, they remain exactly the same as before. The codes do not assume to abolish the