The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-02-26
LITIGATION TOO CHEAP.
And the Processes Of Law and
Action Of Courts Much Too
Slow.
General Business Of Law Ar
'raigned by an Attorney Of
Chicago.
A Vigorous DcnuneiatIon of the Jury
Systematic Remedy Rests En-
tirely With the People.

CHICAGO, Feb. 24.-At the Secular union
meeting at 116 Fifth avenue Sunday even
ing H. g. Bennett lectnred on the Laws
Delay MIR. Bennett said;
1t is impossible during the time at hand
to cover but Il very smalI portion OF the
ground indicated by the subject given for
the discussion of the evening. and shall
speak only upon the practice and procedure
Of tho circuit and superior courts of this
county. TIL forms for procedure, plead
ings, and general rules governing these
courts are the same which were in vogue
hundreds of years ago in England, from
which government our common law and
many of our statutes controlling court
practices have been borrowed. l might
speak indefinitely of the insuticiency and
in%adequacy of the present system, but the
real question is: What changes can be
made which viii meet the requirements?
In my Judgment those changes which
would best subserve the people could only
be made by constitutional amendment or
by the elimination Of a certain portion OF
the constitution. There are changes which
could be made by the legislature that would
do much toward the end desired. Even
under the present practice business could
be disposed Of more rapidly. What is
needed is more Of Chicago push ana bust
ness ability. The study and the practice Of
the law, as we'll as the functions of the
Judge, tend toward moderation and con-
setvatism. All this may be well. but it q
not in step with the music Of pros--ess nor
in harmony with the spirit Of the ace.
First I will make suggestions which re-
quire no constitutional amendment nor
legislative enactment. Section II of chap
ter 40 provides rs follows: ."=..
"All causes shall be tried or otherwise
disposed Of in the order they are placed on
the docket. unless the court for good and
sufficient cause shall otherwise direct; pro-
vided. however that in any county wherein
two or more judges shall be holding separate
branches of the am court at the same time
forthe trial Of causes, such court may direct
the clerk to make out two or more trial dock
cts, and to place all causes upon notes and
other Instruments OF writing for the pay
ment of money only and upon open ac-
counts on one OF such dOcket5; all appeals
from Justices Of the peace on another Of
such dockets. and may cause such other
distribution OF causes upon separate dock
cts as in its discretion it may deem neces-
sary and proper and the court may try Or
otherwise disposenf the causes in their Or
der on any of such dockets as it may deem
proper"
This would enable the Judges to direct
the clerk to examine carefully the pleadings
in every case, and wherever tho face of the
proceedings indicated a short trial, in cases
for recovery OF the payment Of money only,
they should be put on a separate calendar,
that is. all collection cases. Separate cal
endars for all personal injury cases should
be made up; appeal casea should fill another
calendar: replevin suits, suits for damage
to property make another calendar. The
practical effect would be q more rapid dis
position of cases, since the same questions
arise in cases of q given class.
The courts should open ut nine o'clock in
the morning for motions and other business
of routine nature. A preliminary call of
the days cases should be had and opposing
attorneys be invited by the judge to confer
with him with ~ view of eliminating all uI-
necessary proof--thatis ia, each attorney ought
to admit all facts which arc susceptible u
proof by the other side and which can be
proven. Such an informal conference would
enable the judge to materially reduce the
volume of evidence. The difficulty is to
bring about even the changes above sug-
gested. No one lawyer cares to become the
champion OF changes even SO trivial: no
one judge cares to make innovations. From
the people must come changes. The courts
arc but servants OF the people, and when
the people themselves insist and demand Il
different condition it viii! come, and not till
then.
Litigation is too cheap. Amy man can
u suit at law by paving the clerk
So and the sheriff about 81 to serve the
summons. Ii he wins the suit, and the de-
PENDANT is solvent, he gets back his 81. The
statute should be amended, in my judy
ment, at least so as to mako the losing
party pay all the expenses OF the suit, even
attorneys fees, as is the case in New York
and other states. The fossllated old com
mon-law practices should be legislated out
of existence. the distinction between COM
mon law and %chaneery obliteratsd, and a
code of practice enacted that would en-
nble litlgants to state plainly and
concisely their cause of action or
defense. and upon such statement
trial should be had. The plaintiff should
be required only to make out a prima facia
casa and the trial proceed On the part of
the defendant. The jurisdiction OF the
justices might be Increased to $500, and the
right to appeal disallowed unless tbs
amount of the judgment liz in excess of $50.
Ihls would prevent many cases being
brought INTO the circuit and superior
courts. Immediately uEon the conclusion
OF every suit, IT a Judgment is for the pay
ment of money. the party lii whose favor
tho judgment is rendered should have the
right to bring the defendant before the
court and briefly and formally examine him
under oath wholly and completely with re-
ference TO his property, and If the exami-
nation proved that he had no property over
and above q reasonable exemption, such
facts should bs made a matter of record
and no execution be issued, but the iudg-
ment should he a lien upon any property
OF any KIND or nature which he might ac-
qnlre thereafter, and upon tho proper
showing thereof execution should be issued.
The expense of such examination should.
IN the discretion of the caurt Iva toxaI o,