The Council Bluffs nonpareil. [volume] (Council Bluffs [Iowa]) 1857-1867, 1860-03-17

THE NEW CODE.


4
4 whas Il doss about Equity Practiee.
The codcof 1851 intended Tint all the
various steps in the practice OF a law case,
and OF IN equity case, should be similar
That is, it meant that the way Of getting q
party into court, should 10 both kinds OF oa-
SEES be the same-by Dotice-that the suf-
ficiency Of the pleadngs should be govern
proof should be taken 10 the same Why,
namsIy-orally, Whenever poss.bls, that .hs
trial should BE- by the same power, namely,
blythe Court unless either party demanded
q jury, and that the appeal should have in
both cases the same value, namely deter.
mination of errors Of ldu which appeared OF
record. But this intended similarity was
new in this State, and the extent to which
it had been introduced in the most eniight-
ened stues, was then. here little known. -
Bs.id ., sums men, who did not distinguish
rights from the legal means OF asking for
thsu, or & use more exact legal lang uage,
wn1 did not distinguish substantive from
adjective law, came, though not in very
clear way, 10 think that this intended SINH
laiity OF procedure, somehow or other, con.
trnvened the Constitution, and 50 it turned
OUT that loud complaints were made against
lit, which, il they wanted in point, abound
cd in bitterness. One result Of this uniD
telligent opposition was, that many came to
believe the Code did not apply TO chancery,
that is, that one great department. of procs.
dare had been quiet forgotten by the codi-
Tiers Of 1851. Another result was, that
/ the Courts, who always more or less re-
aect the sentiments Of the bar, did now and
then step out Of the case before them and
echo this same uninteilgent and indistinct
objection. Soon also, they took to deciding
that certain sections Of it did not apply to
chanccry, while they decided that other Sec
tons did. Ia some cases they held us TO be
governed here, in Iowa, to-day, by the rules
Of procedure iaid'down by English Chancel-
iors 200 years ago. And in others, it was
conceded that we were competent to end had
made our own law for tbs case. While this
confusion was brooding over the Courts,
and in many cases no lawyer was sure how
he should be required TO proceed to accept.
ably demand his clienrs right. IAN Thfortu-
mite sentence was injected into the New
Constitution, which tended yet further to
confound the confusion.
| The clause switch shall be distinct and
separate Jurisdictions" would have been
quiet harmless in its polntlessness, had not
its framer-like the painter Of horse, who
wrote its name on the canvass beneath it,
told US what it was meant to- achieve
+, ON such accompanying name on the can
vass, not very plainly written. we rather dn-
biou.ly learn that more OF the Code OF 1851
becomes inapphcabe to chancery, but the
length and breadth of the inapp.icabiiity be-
comes yet further underlined.
We have stated tn, evil To be met by the
new Cude. The want is Of u system which
| lst, Shall include in its provisions equity
rs well Us law procedure.
! %, Shall provide such provisions with q
JUS, regard to the supposed demands Of the
! Nc Constitution.
Sd, Shall distinctly declare which Of its
! provisions do, ant which do not apply to
equity. ...r,
! The new Code provides that in tho mode
Of getting the defendant intu Court, the
practice shall! be similar in both these kinds
Of cases, namely-by notice. This is con-
forum. to past usage in Iowa.
| IL also provides tina, 10 both these kinds
/ of peaiin.s, facts alone need 10 be stated,
anu the remedy you want deinanded in PLAIN
and concise terms. This, while It conforms
to past usage in Iowa, IS also the most APP
proved rule Of equity pleading elsewhere.
Through the proof, the trial and the ap-
| peal, the dissimiaritv between law and ca
uity procedure Supposed TO be imposed by
| tho new Constitution, exten6s. In equity
! the new code requires the proofto be IN
writing aud the tr,dI To be by the Court,
unless 1t desire Il jury to find for it a fact,
and On appeal II renearinS to be on the mer-
its rs disclosed by all the testimony which
a.s1 must 90 to the SIpremc Court. E
There is also leave gwen topirties who
agree to do so, to conduct a chancery case
Throughout all its stages by proceedings
similar to those used IN law. This latter
mode is shown on page 100 Of tho Report,
To be now the sole mode Of Mnnesota, Ohio
Missouri, New York. California, and Ne
braska, Kansas and Indiana. a
Between pages l95 and 23t reasons are
given 10 favor of full uuJormlty of proce-
dure, and letters are gwen from distinguish.
ed Judges in the States where such unlfur.
NIFTY exists, showing its exc llent working.
The partial uniformity of the new Code
which conforms To the uniformity of Ken
tucky, rs shown by IL letter on page 233,
from Chief Justice Simpson, OF the supreme
Court uf Kentucky, is also shown to con
ton " hch is satisfactory to every reason
able cnancery separatist, and to be in bar
mony with the decisions of the Suprem,
Court Of Iowa. af - s'- 8-
VgRlrloArIoS. One of tho principles new
to Iowa. recommended in the civil code, Is
verl ication. This mean, that the pialutif
shall swear ,ba, he beiieres his claim to be
Just, before he shall be allowed TO fife it In
81, a e., hall h.,
allowed 10 make any defence which he will
not swear he believes TO be true. The plead
ings by being thus sworn to, do not become
evidence, they nre not used rs testimony
The sole object is to excinde from them all
mere lies, SO that the parties and the Court
will know what facts are really in dispute.
As pleadings are drawn now, no man who
sues another can tell what the other intends
to urge against his claim. The defendant
may state in his pleadings just what he likes
without any ye:ard for the truth. lie states
with mis- real defence u half dozen or more
false ones, and the plaintiff must bring wit
nesses to meet each Of these lies, under the
fear that il be should not do so, he would be
beaten. The result Of this is, that Courts
are crowded with cases that would be dspos-
ed Of ON the mere pleadings, il they were
made with the same truthfuilness which
would be observed by the same men out OF
the Court House. Thus also Courts fail TO
discharge The business with whick they are
glutted. Witnesses are summoned who are
never wanted, aud delays and costs are in
Cured which Ofttimes amount to denial OF
justice. Ff A-sa
This evil used not to exist under tho early
modes of pleading. The plaintiff had 20
swenr to the facts on which he demanded the
writ which waste compel'hc attendance in
Court Of his adversary, and IL a defendant
pleaded II false plen, he was fined. - -
Beside, thu defendant was, until about $50
years ago. allowed tuplead only one defence
even il he had ever SD many, and this made
it pretty sure that the one he plead, was the
most truthful one he had. 17' iS29 % 3S''
No one thinks OF returning to these old
modes Of securing trnth'uIness in the plead
ings, and yet everybody feels that the inter.
ests of every citizen demands that the pres |
ent lying mode OF procedure in courts of law
which, IL INDUCED in elsewhere, wonld dis
vruca nnv man tni,Sf ~, affppp,I The rem I