Page:The Green Bag (1889–1914), Volume 17.pdf/311

 THE GREEN BAG In actual practice, the Supreme Court al ways certifies that there was reasonable cause. From this review, it will appear that the organization of the courts and these rules' of law are designed to favor litigation; to keep it going, instead of putting an end to it. In many cases, there may be two trials of the same questions of fact, and in all cases, unless there is less than $300 in volved, two reviews for errors of law. The losing party pays no attorney's fees, except his own; and runs no risk of serious finan cial loss in costs, penalties, or damages. Contrast it with the conditions disclosed in Mr. Crane's article, and it will explain much of the congestion in business. Pro ceedings in all English courts are notori ously expensive; the costs and fees of solic itor and counsel (as many as three) which are taxed against the losing party, does "undoubtedly deter persons from recklessly bringing frivolous, vexatious, and specula tive actions." It has precisely the same effect upon the honest litigant with a meri torious cause of action; and if he is poor, the fear of it amounts to a denial of justice. To this cause, above all others, is due the smaller number of suits brought and of appeals taken. A client of mine had patents in Germany and in England, and they were being in fringed in both countries. He made inquiry of a solicitor in Hamburg and in London, as to what it would cost to bring a suit and obtain a judgment in a court of first instance testing the validity of his patent. The German solicitor answered $500; the Eng lish solicitor answered ^2500! My client thought he had a meritorious case and a valid patent; but he decided that it was less expensive to protect himself by com petition in the market than in an English court of justice. Whether it is wise to give every man whose case has once been tried in a justice's court, either with or without a jury, the right to have it tried dc novo in another forum; whether it is wise to give one who

has had an equity case tried in the Court of Common Pleas a right to have it tried de novo in a higher court; whether it is wise to permit one whose action at law has been reviewed on error in the Circuit Court, to have another right of review in the Supreme Court, are questions about which opinions will differ. It is, however, easily possible so to restrict the right to have a second trial of the same case, or a second review for errors of law, that the congestion in the Court of Common Pleas, and in the Supreme Court would be much reduced. In this state, the remedy must be sought primarily by depriving litigants of rights they now have rather than in a reform of the rules of civil procedure. The practice outlined in Mr. Crane's article under the sub-heading "Summons for Directions" seems to me less expeditious and more burdensome to the courts than the practice in Ohio. Instead of taking out a writ first, and then asking a judge to give directions about future pleadings and practice, the pleader files his petition first, and then takes out his writ. This may be done at any time and without previous leave. The defendant must answer or de mur on or before the third Saturday there after. The plaintiff must reply or demur to the answer within two weeks thereafter. Granted that each party is in earnest, and has a lawyer who knows how to state his case, it is possible to get an issue within six weeks. If the demurrer is overruled, the time to answer or reply is in the dis cretion of the court. And with four terms of the Common Pleas Court a year, unlim ited as to the length of the terms, whether a party gets prompt justice, would seem to depend, not on rules of practice, but on the personal efficiency of those adminis tering the law. As to the filing of interrogatories, the inspection of documents, and the taking out of commissions to examine witnesses, these may all be done without delay, and without troubling any judge or master.