The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1906-04-18

No speech made in Minneapolis in
years has created greater discussion
among lawyers and business men than
did that Of Judge Charles F. Amidon of
North Dakota, delivered before the an
nuala meeting of the Minnesota State
Bar association on April 3. The talk
was a masterful and scholarly discus
sion of the American system of juris
prudence in IN regard to appeal as com
Some of the Judges statements were
sensational and his arraignment of the
weaknesses Of the American system
started a widespread discussion that
increases rather than decreases as the
days pass.
a complete transcript of the speech
has been desired bv many lawyers and
business men and in response to this de-
sire T he J rnal has secured one
from the official stenographer. Judge
Amldon's address follows:
+. 'H Judge Amidon's Address.
In 1887 committee of the American Bar asso-
citation reported to that body, after a careful
Investigation of the subject. that new trials
were granted In As per cent of all of the causes
that were brought under review in the appellate
courts courts IN this country. It was further found
turned uron questions of pleading and practice.
l. myself have recently looked into this subject
With, respect to seven representative, states of
me un1on for period extending from 1895 to
1900, and 1 found that the conditions complained
OF by the American Bar association had not
ON tn Tha IN
paper contains an account Of cause. per-
sonar son injury case that had already been to
had Just been tried again and started on Its
weary journey for another review.
, These facts point Enthusiastically to the capital
lnyr via tic, ot,ft-
instability of admin1stra ton, and frequent re-
trials OF the same controversy. For the pur-
condition is a necessary and Indispensable evil.
| have examined the law reports of England for
the period extending from 1890 to 1900, and
find that of all the causes that We're brought
under review on appeal in that country, new
trials We're granted in less than 3a per cent.
Here is country having the same body Of
stantially the same practice that we have. and
yer Inc result in one case is new trials in 45
in the other case in less than 315 per cent.
~<s Cause Of Indifference.
What is the cause of this difference? I know
attention might be directed, but l" place my
finger upon the fatal defect of our legal nd
ministration when point to the doctrine that.
snmed That is the difference between the Eng
lish administration of the law and the American
administration of the law. In England there is
exceptions. On an appeal there is common
law action the in chancery case the
merits Of the CONTROVERSY copy of the plead
ings AMI of the written, instruments that have
aIr cared in the trial of the case is furnished tc
the appellate court. and a transcript of the
evidence, or more frequently. transcript OF
the brief notes of the presiding Judge. is fur
nished to the appellate court, and then the
ceedings of the trial judge, but the question
is is the judgment just, and if it is, it is lei
This doctrine that where error is foune
prejudice will be presumed, removes the cause
at once from the region Of reality, and fact int
the thin air Of presumption and metaphy sizes
The record Is there, why presume prejudice
Why not look at the record and see whether
prejudice in fact has occurred? That is, whether
the error is one of such character would
produce. the English rule says miscarriage
of Justice After litigants have once been lee
to be at the end, peace for both. and per
manent fruition for one: It is the primary Oh
Justice. whose ministers we are, to settle thu
controversies Of men and not to keep them IL
everlasting agitation. -
Based on Experience.
Let us look at this matter little NOR
closely as matter of experience. l am no
| going to talk to you today about matter O.
| theory; all that l shall say will be baset
upon long and well-tried experience. The doc
| trine of trials is almost unknown on thu
continent of Europe, because there they hav
| have no doctrine Of precedent such as we have
| and cause in their courts comes up to b.
| tried as separate cause upon Its merits | an
not speaking in advocacy Of that doctrine a
/ all. l simply speaking of 1t as fact o
4 judicial history.
1 In England such thing as new trial in
1 chancery cause has not been known for NOR
than fifty years. Of course, having the sam
| procedure we have, questions will arts
such as with us, would necessitate the grant
ing of a new trial, but they never grant then
| in ffarS frC
quently. For example, there is no such thin
as rules of evidence in chancery cause
basis Of error. To be sure the rules of evi
! dencc are administered and applied there, bu
| their violation has nothing whatever to do wit
| the review of the cause on appeal. But sup
| pose that evidence has been excluded by tn
| trial judge which. ought to have been ad
| mitted. how will the English trial court dea
with such situation? Surely that would pre-
sent ease with US that would have to g
| English appellate court do?
Concrete illustrations 3D.,
| Let me give a concrete illustration, for tina
| will be palmer than any abstract statement
| evidence Of parties resident in South Afric
seemed to be very important for the determine
| ton Of the controversy, but in order to &c
| that evidence the cause would have had
have been delayed for months, and the chan
| cellor thought that the evidence was not O
sufficient Importance to Justify the delay. H
Il
posing of the case. An appeal was taken an
| the court of appeals took a different view
regard to this evidence from that which wa
| taken by the trial judge, and thought that
ought to be produced in order to fully an
fairly dispose of the cause. What did they do
Simply entered an order opening the appeal an
| appointing q master to take that evidence
| South Africa and directing him to report tn
evidence to the court of appeals instead of til
trial judge. and when the evidence had come il
the appellate court proceeded to dispose of th
cause upon the record thus produced The
found that the trial judge had disposed of til
fore him, but they also found that he had bee
mistaken in holding that the excluded evidenc
was not important, and they proceeded to ente
| decree then and there for the opposite part
and ended the controversy. -
Procedure in England.
That same practice obtains to a CONSIDERABLE
extent in the chancery courts in this country
But what about common law causes in England
| When %tbe 5udicature act was adopted in 1S7
| a provision was Incorporated in it authorizn
the high court to regulate all matters of plea,
/ ing and practice by rule, and there never we
all instance of the supreme wisdom Of til
English as administrators of law that Shove
that wisdom more conspicuously than did thu
4 provision.
The iudicature act in England would n,
cover more than four pages of your new cod
| in SO far as 1t deals with matters of practit
and pleading. Its most important provision
the one which authorizes the judges of the hig
court to make these rules. And now all thos
matters which we have embodied in statute
and thus thrown down before. the legislature
1 to amend and keelhaul and rectify often al
cording TO the wishes of some lawyer who hs
been elected to the legislature. and who has ba
some unfortunate experience which he wisht
/ to rectify himself for the future.
do not know how 1t is in this state but
| the state where l reside most of the ament
lnents to the code of civil procedure have ha