England was the first common-law jurisdiction to provide for declaratory relief. In 1883, a rule of court allowing such relief was adopted, and this was supplemented in 1893. These rules follow:

RULES OF THE SUPREME COURT (ENGLAND).

ORDER XXV, RULE 5 (1883). No action or proceeding shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether any consequential relief is or could be claimed,

or not.

ORDER LIV-A, RULE 1 (1893). . . . any person claiming to be interested under a deed, will, or other written instrument, may apply by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested.

While there was some American legislation allowing a certain degree of declaratory relief in the last century,' it was not until 1918 that such legislation began to be adopted generally in this country.2 In 1921, a Uniform Declaratory Judgment Act was approved by the Conference of Commissioners on Uniform State Laws, and it has now been adopted in about thirty states, while a number of other states have some other form of modern declaratory judgment statute.* Congress adopted a statute authorizing declaratory judgments in the federal courts in 1934,5 and the constitutionality of the procedure has been established."

1 See Borchard, Declaratory Judgments (1934) 244-245.

2 This legislation was enacted largely as a result of the pioneer efforts of Professor Borchard of Yale and Professor Sunderland of Michigan. See Sunderland, "A Modern Evolution in Remedial Rights: The Declaratory Judgment," 16 Mich. L. Rev. 69 (1917); Borchard, "The Declaratory Judgment; A Needed Procedural Reform,” 28 Yale L. J. 1, 105 (1918).

3 See Borchard, "The Uniform Act on Declaratory Judgments," 34 Harv. L. Rev. 697 (1921).

* See the list in Chafee, Cases on Equitable Remedies (1938) 444-445. 5 Act of June 14, 1934, 48 Stat. 955, as amended by Act of August 30, 1935, 49 Stat. 1027; 28 U. S. C. § 400. See Note, 49 Harv. L. Rev. 1351 (1936).

6 The federal statute was held constitutional in Aetna Life Ins. Co. v. Haworth, 300 U.. S. 227 (1937), as against the claim that a suit for declaratory judgment did not present a "case or controversy" to which the judicial power of the federal courts extended under the Constitution. In the state courts the constitutionality of the procedure has uniformly been sustained as within the scope of judicial power. See Borchard, Declaratory Judgments (1934) 251-271. A contrary decision in Michigan, Anway v. Grand Rapids, 211 Mich. 592 (1920), has been overruled.. Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673 (1930).

No attempt will be made in this course to consider the legal problems raised by the declaratory judgment. Adequate consideration requires a knowledge of the background of the modern legislation in the classical equity practice in suits quia timet and bills by trustees for instructions, and is better dealt with in courses on Equity or Practice. It is important, however, that the beginning student of civil procedure realize that the declaratory judgment is an important part of modern procedural law with which he must be familiar when he comes to the bar.

We have already considered costs under modern procedures in dealing with costs at law.1 In most code states, the equity rule as to costs has been adopted for all actions, and this is the way in which costs are dealt with in the Federal Rules of Civil Procedure.2

SECTION 6

APPELLATE REVIEW 3

WITH the procedural unification of law and equity in most jurisdictions has come a common method of appellate review. As we have seen, review at common law was by writ of error which permitted review of errors of law in the technical record or errors at the trial which were made part of the record by bill of exceptions, while review in equity was by appeal which brought up the whole case for reconsideration de novo. The pressure for unification of these methods of securing appellate review has been considerable, even in the absence of the unification of law and equity; and in some jurisdictions review in equity came to be by writ of error, as was for a time the case in Illinois, while in others review at law came to be by appeal, as was the case in the federal courts from 1928 to 1938.5 But in most instances this unification was only formal; the scope of review on a writ of error in equity was the same as that on an

1 See pp. 477-478, supra. As to costs in equity, see p. 712, supra.

2 See Rule 54 (d), pp. 477-478, supra.

3 See Millar, "Notabilia of American Civil Procedure 1887-1937," 50 Harv. L. Rev. 1017, 1058-1063 (1937).

4 Except in the limited classes of cases where review by bill of review was possible. See pp. 719–723, supra.

5 Act of January 31, 1928, 45 Stat. 54, as amended by Act of April 26, 1928, 45 Stat. 466, 28 U. S. C. §§ 861a-861b. These sections provided as follows: "[§ 861a] The writ of error in cases, civil and criminal, is abolished. All relief which heretofore could be obtained by writ of error shall hereafter be obtainable by appeal. [§ 861b] The statutes regulating the right to a writ of error, defining the relief which may be had thereon, and prescribing the mode of exercising that right and of invoking such relief, including the provisions relating to costs, supersedeas, and mandate, shall be applicable to the appeal which the preceding section substitutes for a writ of error."

equity appeal, while review on an appeal in an action at law was no different in practical effect from that on writ of error. The federal legislation in particular simply provided for one formal proceeding called an appeal which was in effect a writ of error in law cases and an appeal in equity cases.1 Where law and equity are administered in a single form of procedure, it is easy to provide for a single method for invoking appellate review, and this is generally called an appeal.❜ This is the procedure in most of the code states and has now been adopted for the federal courts.

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 72. APPEAL FROM A DISTRICT COURT TO THE SUPREME COURT. When an appeal is permitted by law from a district court to the Supreme Court of the United States, an appeal shall be taken by petition for appeal accompanied by an assignment of errors. The appeal shall be allowed, a citation issued, a jurisdictional statement filed, a bond on appeal and supersedeas bond taken, and the record on appeal made and certified as prescribed by law and the Rules of the Supreme Court of the United States governing such an appeal." RULE 73. APPEAL TO A CIRCUIT COURT OF APPEALS.

(a) How Taken. When an appeal is permitted by law from a district court to a circuit court of appeals and within the time prescribed, a party may appeal from a judgment by filing with the district court a notice of appeal. Failure of the appellant to take any of the further steps to secure the review of the judgment appealed from does not affect the validity of the appeal, but is ground only for such remedies as are specified in this rule or, when no remedy is specified, for such action as the appellate court deems appropriate, which may include dismissal of the appeal.*

(b) Notice of Appeal. The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part

1 See Payne, "The Abolition of Writs of Error in the Federal Courts," 15 Va. L. Rev. 305 (1929). Cf. Weinstein v. Black Diamond S. S. Corp., 31 F. (2d) 519 (C. C. A. 2d, 1929), certiorari denied, s. c., 283 U. S. 837 (1931). 2 See, e.g., N. Y. C. P. A. §§ 557-634-a.

3 Direct appeals from the district courts to the Supreme Court of the United States are permitted in only a few situations. See Frankfurter and Landis, The Business of the Supreme Court (1928) 263.

• Second Preliminary Draft of Proposed Amendments to the Rules of Civil Procedure for the District Courts of the United States (1945) 81-88, proposes substantial changes in Rule 73 (a), the most important being a reduction of the time for appeal from 3 months to 30 days except in cases where the United States is a party where 60 days is to be allowed. This shortened time for appeal is in line with modern developments in state appellate practice. See Pound, Appellate Procedure in Civil Cases (1941) 340-342.

thereof appealed from; and shall name the court to which the appeal is taken. Notification of the filing of the notice of appeal shall be given by the clerk by mailing copies thereof to all the parties to the judgment other than the party or parties taking the appeal, but his failure so to do does not affect the validity of the appeal. The notification to a party shall be given by mailing a copy of the notice of appeal to his attorney of record or, if the party is not represented by an attorney, then to the party at his last known address, and such notification is sufficient notwithstanding the death of the party or of his attorney prior to the giving of the notification. The clerk shall note in the civil docket the names of the parties to whom he mails the copies, with date of mailing.

(c) Bond on Appeal. Whenever a bond for costs on appeal is required by law, the bond shall be filed with the notice of appeal. The bond shall be in the sum of two hundred and fifty dollars, unless the court fixes a different amount or unless a supersedeas bond is filed, in which event no separate bond on appeal is required. The bond on appeal shall have sufficient surety and shall be conditioned to secure the payment of costs if the appeal is dismissed or the judgment affirmed, or of such costs as the appellate court may award if the judgment is modified. If a bond on appeal in the sum of two hundred and fifty dollars is given, no approval thereof is necessary. After a bond on appeal is filed an appellee may raise objections to the form of the bond or to the sufficiency of the surety for determination by the clerk.

(d) Supersedeas Bond. Whenever an appellant entitled thereto desires a stay on appeal, he may present to the court for its approval a supersedeas bond which shall have such surety or sureties as the court requires. The bond shall be conditioned for the satisfaction of the judgment in full together with costs, interest, and damages for delay, if for any reason the appeal is dismissed or if the judgment is affirmed, and to satisfy in full such modification of the judgment and such costs, interest, and damages as the appellate court may adjudge and award. When the judgment is for the recovery of money not otherwise secured, the amount of the bond shall be fixed at such sums as will cover the whole amount of the judgment remaining unsatisfied, costs on the appeal, interest, and damages for delay, unless the court after notice and hearing and for good cause shown fixes a different amount or orders security other than the bond. When the judgment determines the disposition of the property in controversy as in real actions, replevin, and actions to foreclose mortgages or when such property is in the custody of the marshal or when the proceeds of such property or a bond for its value is in the custody or control of the court, the amount of the supersedeas bond shall be fixed at such sum only as will secure the amount recovered for the use

and detention of the property, the costs of the action, costs on appeal, interest, and damages for delay.1

...

RULE 74. JOINT OR Several APPEALS TO THE SUPREME Court or TO A CIRCUIT COURT OF APPEALS; SUMMONS AND SEVERANCE ABOLISHED. Parties interested jointly, severally, or otherwise in a judgment may join in an appeal therefrom; or, without summons and severance,2 any one or more of them may appeal separately or any two or more of them may join in an appeal.3

A writ of error at common law was a writ as of right. If a court of error having jurisdiction existed, the defeated litigant in the lower court could not be prevented by either court from securing a review in error. In equity, appeal lay as of right. This is still true in a number of the United States whether or not a unified method of obtaining appellate review exists. However, the pressure of work on most appellate courts has greatly increased, and in some jurisdictions appellate review in many cases has become permissive only. These are usually jurisdictions where there is a hierarchy of courts which includes intermediate courts of appeal. An appeal as of right is ordinarily allowed to an intermediate appellate court; review by the court of last resort may be had only by permission, sometimes of the court whose decision is to be reviewed, sometimes of the review

1 The remainder of Rule 73 relates to the effect of failure to file a bond or a sufficient bond, the liability of the sureties on appeal bonds, and the time for docketing appeals and filing records on appeal.

2 See p. 482, n. 1, supra.

3 Rules 75 and 76 provide for the form and preparation of records on appeal to the circuit courts of appeals. The record is to contain in any event copies of the pleadings, the verdict, or findings of fact and conclusions of law, together with the direction for entry of judgment, any master's report and opinion, the judgment, and the notice of appeal; and will contain also such "portions of the record, proceedings and evidence" as either party shall designate.

Rule 75 (c) provides that the testimony of witnesses may be in either narrative or question and answer form. In most states testimony is included in the record as taken down stenographically, that is in question and answer form. See e.g., pp. 37–62, supra. See Stone, "The Record on Appeal in Civil Cases," 23 Va. L. Rev. 766 (1937); Note, 36 Col. L. Rev. 1133 (1936). Under the Federal Equity Rules of 1912, reduction to narrative form was required, although the practice was much criticized. See Griswold and Mitchell, "The Narrative Record in Federal Equity Appeals," 42 Harv. L. Rev. 483 (1929); Severn, "Practical Results of Federal Equity Rule 75(b) as to Restatement of Testimony in Narrative Form," 34 Mich. L. Rev. 1093 (1936).

No assignment of errors is required, but by Rule 75 (d) the appellant, if he does not designate for inclusion in the record on appeal "the complete record and all the proceedings and evidence in the action," must file "a concise statement of the points on which he intends to rely on the appeal." But the Circuit Courts of Appeals by their own rules make provisions as to assignments of

error.