D. C. 375, a case not within the scope of this note, there is a statement which might be interpreted as upholding a contrary view.

In Burlington & M. River R. Co. v. Marchand (1858) 5 Iowa, 468, it appeared that a rule of court provided that a general denial of the affirmative allegations of the petition satisfied the requirements of the Code without a specific denial of each averment. Disregard of this rule was held to be error in spite of the fact that it had been orally announced to members of the bar that a general denial would not be considered a sufficient answer. The court said that the rule, until abolished in a regular manner, was to be considered in force. "It was not allowable to treat the answer as a nullity, and render judgment by default, in the same manner as if no answer was on file."

In Walker v. Ducros (1866) 18 La. Ann. 703, a judgment was reversed on the ground that the trial court had not called the case to be fixed for trial on the first day of the term, which was the requirement for all cases, under a rule of court.

In Berthelot v. Hotard (1906) 117 La. 524, 42 So. 90, it was held that a motion to dissolve an attachment and an exception, being fixed for trial on a certain day, should have been taken up during the first morning hour, in accordance with a rule which read as follows: "Motions, rules, and exceptions, and all pleas in limine, shall stand fixed for trial in the order in which they are entered on the trial docket, and tried, during the first morning hour after the expiration of the time allotted for motions, etc., under rule 5." The court below was ordered to hear and decide the matter of setting aside the seizure, it being remarked that the motion to dissolve should have been taken up even if there had been no governing rules.

In Levy v. Michon Bros. (1918) 142 La. 825, 77 So. 644, a writ of prohibition was made peremptory on the complaint of the relators that the court of appeal had fixed their case for a day which did not allow the three days' notice required by its rules, and for a

week in which, under the same rules, cases of that kind were not triable.

In Re Wenger (1920) 147 La. 422, 85 So. 62, a writ of mandamus issued, directing the judge of the court below to continue the trial of a certain case until it should be fixed as an ordinary case on the ordinary docket, as provided by the rule of the civil district court, the case having been erroneously placed on the summary docket, and consequently illegally called for trial.

In Witzler v. Collins (1879) 70 Me. 290, 35 Am. Rep. 327, a deposition was admitted, although not filed at the term for which it was taken, as required by the rule of court. The court said: "Nor is the claim that the enforcement of a rule made by the court is within its discretion any more tenable. It may be that a rule adopted solely for the purpose of regulating the proceedings of the court, to render them more simple, methodical, and uniform, and when the rights of the parties are not involved, may, as in United States v. Breitling (1858) 20 How. (U. S.) 252, 15 L. ed. 900, be suspended or modified in its operation, when, in the judgment of the court, convenience or justice may require it; or, perhaps, as in Law v. Law (1826) 4 Me. 167, in certain cases a noncompliance may be excused when caused by accident or mistake, and no injustice can result to the opposing party. But in this case the rule is not for the guidance of the court alone, but regulates as well the proceedings and involves the interests of opposing parties, and there is no suggestion of accident or mistake as the cause of a neglect of its requirements. Nor in such case can the court waive any of its provisions. That can be done only by the party for whose benefit it was made. Winnisimmet Co. v. Assessors (1850) 6 Cush. (Mass.) 483. The result is that the superior court, with sufficient authority therefor, having made the rule, is bound by its provisions so long as it remains in force, precisely as if it had been a statute."

In Dunbar v. Conway (1839) 11 Gill & J. (Md.) 92, the judgment was reversed because the trial court had violated a rule of court which fixed the

time within which a principal might be surrendered in discharge of his special bail. It was said: "The proper office of such a rule is to establish fixed and settled practice, to which the court is required to conform, and any error of opinion in respect either to its legal effect, or to its application to a particular case, will entitle the party injured to redress by appeal, as for error in the construction or application of any rule of the statute or common law; it being, of course, implied that the decision is final, and that no other objection could be taken which would prevent an appeal in any case."

In Thompson v. Hatch (1827) 3 Pick. (Mass.) 512, the court below allowed a plea in abatement to be filed on the fifth day of the term, although the rule of court allowed but four days for that purpose. Holding this to be error, it was said: "The circumstances were such as would justify that order of the court, if it had had power to pass it; but we are satisfied that no one judge of the court of common pleas, or of this court, has authority to dispense with rules deliberately made and promulgated, on account of the hardship of any particular case, any more than he would have authority to dispense with any requisition of the legislature itself. The courts may rescind or repeal their rules, without doubt; or, in establishing them, may reserve the exercise of discretion for particular cases. But the rule, once made, without any such qualification, must be applied to all cases which come within it, until it is repealed by the authority which made it."

In Hill v. Webber (1883) 50 Mich. 142, 15 N. W. 52, a judgment entered on motion was set aside. The court said: "Now, according to the rules of court, all special motions, except motions for a continuance, must be entered in the special motion book; and the affidavits and other papers on which the motions are founded must be filed at the time of entering the motions, and copies thereof must be served on the attorney of the opposite party on or before the day of entering such motions unless further time is

granted. Rules 28, 29. The defendant's motion for judgment was within these provisions, and no other mode existed for bringing it on. No doubt the plaintiff might have waived observance of this requirement, but he did not. It was his right to insist on strict compliance, and he did so. He objected that copies of the papers were not served on or before the day of entering the motion, and the objection was a valid one."

In Tindal v. Tindal (1869) 1 S. C. 111, the court set aside an order confirming the report of a commissioner and directing payment from the assets of an estate, made before the expiration of the time provided by rule of court for filing exceptions to the report.

In a few instances it has been held that a trial court's violation of its own rules, while constituting error, furnished no ground for reversal. Thus, in Magnuson v. Billings (1899) 152 Ind. 177, 52 N. E. 803, it was held to be error for the court below to violate one of its rules which required an affidavit disclosing certain facts before an issue would be reopened. It was said: "A rule of court is a law of practice, extended alike to all litigants who come within its purview, and who, in conducting their causes, have the right to assume that it will be uniformly enforced by the court, in conservation of their rights, as well as to secure the prompt and orderly despatch of business." But since the defendant was not damaged by the action of the court, the error was held to be harmless, and not ground for reversal.

In Holbert v. Patrick (1918) Okla., 176 Pac. 903, it was objected that the court below had erred in sustaining a demurrer to a petition to vacate a judgment. A rule of the district court provided that motions and demurrers should be heard on Saturdays, except where authorized by order of the court. The demurrer in question was not heard in compliance with this rule. The court said that rules of court had the effect of a statute until amended or repealed by the court of their creation, and added:

"There is, of course, a wide difference in the character of the various rules of courts. Some are intended merely to produce regularity and order in court proceedings. Rules of appellate courts as to the form of briefs, etc., such rules may well be placed as directory only. There is another class, such as the one under consideration, which stands as notice to all litigants that the court will not act until a certain time, or until certain prior steps are taken. To disregard such rules would be the very opposite of the promotion of justice. Such action would be the unwarranted abuse of power,-the arbitrary exercise of power, condemned. by every idea of justice and right." The violation of the rule was, however, held to be harmless error, in view of other circumstances of the case.

In State v. Birchard (1899) 35 Or. 484, 59 Pac. 468, the defendant complained that when the cause was called for trial, the trial court had required that any special instructions desired to be given should be submitted within an hour, although a rule of court provided as follows: "If either party desires the court to give special instructions to the jury on any questions of law, he must, unless the court shall otherwise direct at the commencement of the trial, submit such instructions in writing to the court before the first argument is begun, and each instruction must be separately numbered." It was held that the court's action was improper, but that no appreciable injury had been caused.

b. View that violation of rule does not constitute error.

hattan L. Ins. Co. v. Francisco (1873) 17 Wall. 672, 21 L. ed. 698.

California. Chielovich v. Krauss (1886) 2 Cal. Unrep. 643, 9 Pac. 945; Sullivan v. Wallace (1887) 73 Cal. 307, 14 Pac. 789; Symons v. Bunnell (1889) 3 Cal. Unrep. 69, 20 Pac. 859; White v. Superior Ct. (1895) 110 Cal. 60, 42 Pac. 480; Connell v. Higgins (1915) 170 Cal. 541, 150 Pac. 769. See also Lantz v. Cole (1916) 172 Cal. 245, 156 Pac. 45. But see Arata v. Telluriun Gold & S. Min. Co. (1884) 65 Cal. 340, 4 Pac. 195.

Florida.-O'Gara v. Hancock (1918) 76 Fla. 1, 79 So. 167.

Kentucky. Paducah Land, Coal & I. Co. v. Cochran (1896) 18 Ky. L. Rep. 465, 37 S. W. 67; Com. v. Goulet (1910) 140 Ky. 843, 132 S. W. 151. Minnesota. Sheldon v. Risedorph (1877) 23 Minn. 518; Gale v. Seifert (1888) 39 Minn. 171, 39 N. W. 69; Nye v. Swan (1889) 42 Minn. 243, 44 N. W. 9; Gillette-Herzog Mfg. Co. v. Ashton (1893) 55 Minn. 75, 56 N. W. 576. New Hampshire. Eastman Amoskeag Mfg. Co. (1862) 44 N. H. 143, 82 Am. Dec. 201; Sanborn v. Boston & M. R. Co. (1911) 76 N. H. 65, 79 Atl. 642. See also Deming v. Foster (1860) 42 N. H. 165, and Shea v. Starr (1913) 76 N. H. 538, 85 Atl. 788.

V.

Washington. Washington Bank v. Horn (1901) 24 Wash. 299, 64 Pac. 534; Sylvester v. Olson (1911) 63 Wash. 285, 115 Pac. 175.

In many cases it has been observed that a court may suspend its own rules or make an exception of a particular case in the cause of justice. United States v. Breitling (U. S.) supra; Southern P. Co. v. Hamilton (1893) 4 C. C. A. 441, 7 U. S. App. 626, 54 Fed. 468; Southern P. Co. v. Johnson (1895)

16 C. C. A. 317, 44 U. S. App. 1, 69 Fed. 559; Symons v. Bunnell (1889) 3 Cal. Unrep. 69, 20 Pac. 859; Sullivan v. Wallace (1887) 73 Cal. 307, 14 Pac. 789; Paducah Land, Coal & I. Co. v. Cochran, and Com. v. Goulet (Ky.) supra; Gale v. Seifert (1888) 39 Minn. 171, 39 N. W. 69; Gillette-Herzog Mfg. Co. v. Ashton (Minn.) and Eastman v. Amoskeag Mfg. Co. (N. H.) supra; Sanborn v. Boston & M. R. Co. (1911) 76 N. H. 65, 79 Atl. 642; Washington Bank v. Horn (Wash.) supra.

2. Application of rule.

In United States v. Breitling (1858) 20 How. (U. S.) 252, 15 L. ed. 900, an objection to a bill of exceptions was founded on a rule of the circuit court which adopted the practice of the state courts, which practice, regulated by statute, was that a bill of exceptions might not be signed after a certain time. It was held that, even if the state regulation had been adopted by a rule of court, it was always in the power of the court to suspend its own rules, or, in a particular case, to make an exception, when required in the interest of justice. See to the same effect, Southern P. Co. v. Johnson (1895) 16 C. C. A. 317, 44 U. S. App. 1, 69 Fed. 559.

So, in Southern P. Co. v. Hamilton (1893) 4 C. C. A. 441, 7 U. S. App. 626, 54 Fed. 468, wherein it was claimed that the writ of error should be dismissed because no bill of exceptions in support of the motion for a new trial had been made or presented to the judge, in accordance with the requirements of the rules of the circuit court, the court held that it was within the power of the trial court to suspend its own rules, or to make an exception therefrom in favor of a particular case.

In Chielovich v. Krauss (1886) 2 Cal. Unrep. 643, 9 Pac. 945, it was held that a trial court might properly set aside its own rule requiring, as a condition precedent to the validity of an order granting an extension of time to prepare, serve, and file a statement on motion for new trial, that the order should be served on opposing counsel, or the party represented by him.

In Sullivan v. Wallace (1887) 73 Cal. 307, 14 Pac. 789, it was urged that the trial judge had illegally extended the time within which to settle the statement on motion for a new trial, because a copy of the order made had not been served on opposing counsel, as required by a rule of court in the case of the making of all ex parte orders. It was held, however, that trial courts may suspend their own rules or disregard them, when required for the purposes of justice.

In Symons v. Bunnell (1889) 3 Cal. Unrep. 69, 20 Pac. 859, the action of the lower court in going on with the trial of the case, in alleged violation of one of its rules, was held not to be erroneous. The case had been set for trial on plaintiff's motion, without notice of the motion, and without consent, notice or consent being required by the rules of the trial court.

In White v. Superior Ct. (1895) 110 Cal. 60, 42 Pac. 480, the court refused to concede weight to an objection that the court below had not acquired jurisdiction because of the violation of its rule providing for the method of transferring a cause from one department thereof to another. The court said: "But it is perfectly obvious that, however proper those rules may be, or however desirable or essential to the impartial and orderly conduct of the business of the court that they should be adhered to, their violation in any instance cannot affect the jurisdiction of the court over a cause."

In Connell v. Higgins (1915) 170 Cal. 541, 150 Pac. 769, there was involved a rule of the superior court of Los Angeles county which provided that where the time to propose the statement on motion for a new trial has been extended by stipulation, the court cannot grant a further extension beyond the period of thirty days, inclusive of the time given by the stipulation. The rule, said the court, "did not deprive the superior court of power to grant an extension of time where there had been a previous extension by stipulation, covering the period of thirty days. The superior court, by § 1054 of the Code of Civil Procedure, is given power to extend the time for

proposing a statement for a period of thirty days. This power it has, and it cannot, by its own rule, devest itself thereof. Furthermore, in the absence of any showing to the contrary, this court would presume that the superior court disregarded the rule for sufficient cause and to subserve the ends of justice. This it has the power to do." See to the same effect, Lantz v. Cole (1916) 172 Cal. 245, 156 Pac. 45, involving the granting of an extension of time for serving a bill of exceptions.

But a different view was apparently taken in an early case (Arata v. Tellurium Gold & S. Min. Co. (1884) 65 Cal. 340, 4 Pac. 195). In that case the appellate court reversed the judgment of the trial court, which granted the plaintiff's motion for judgment for want of an answer, over the defendant's objection that no written notice of the motion or the grounds therefor. had been given. It was remarked that "a rule of the court required notice of every motion not ex parte;" but the decision seems to have been placed on the ground that, by overruling the objection to the want of notice, the defendant's rights may have been prejudiced.

In Dolan v. Stone (1901) 63 Kan. 450, 65 Pac. 641, it was urged that the trial court had erred because it had enforced an oral agreement of counsel, in violation of its rule, which provided as follows: "Stipulations and admissions of counsel will not be enforced unless made in writing, or in open court, in the presence of the stenographer, and by him taken as a part of the record of the case." As the result of a breach of an oral stipulation a judgment was rendered against a party not liable for a debt; counsel's act amounting to legal or constructive fraud. It was said: "Rules of a district court are made in pursuance of the inherent power vested in that tribunal to aid in administering, and not in thwarting, justice. If to invoke the assistance of a rule under a given state of facts would be to accomplish a wrong, a court may well decline to apply it, and in such case the power that

made the rule may suspend its operation."

In Com. v. Goulet (1910) 140 Ky. 843, 132 S. W. 151, it was held that a court properly suspended one of its rules governing the summoning and impaneling of grand juries. This rule, it was said, the court had the power to observe or suspend.

Sheldon v. Risedorph (1877) 23 Minn. 518, was an appeal from an order setting aside a default judgment and permitting the defendant to answer. It was objected that the affidavit excusing the failure and swearing to merits was not in the form required by the rules. The court said: "The granting of an application of this kind rests in the sound discretion of the court below, which cannot be reviewed unless there is an abuse of it; and in an application addressed to it, not as a matter of strict right, but as a matter of discretion, it may excuse a party from formal compliance with its rules. That, on such an application, is as much matter of discretion as anything in the application. The court below might, had it seen fit, have denied the motion because of the defect in the affidavit of merits; but it saw fit to disregard the defect, and its action is final." See to the same effect, Nye v. Swan (1889) 42 Minn. 243, 44 N. W. 9.

In Gale v. Seifert (1888) 39 Minn. 171, 39 N. W. 69, the plaintiff appealed from the discharge of a writ of attachment which had been levied on the real property of the defendant. It appeared that the bond on which the attachment was discharged did not bear a certificate of acknowledgment by the sureties, as required by rule of court. The bond was obligatory without the acknowledgment. The court said that if, from the action of the district judge, it was to be inferred that he considered that the rule should be disregarded, there was no apparent reason for reversing his action, for he had power to excuse compliance with the rule.

In Gillette-Herzog Mfg. Co. v. Ashton (1893) 55 Minn. 75, 56 N. W. 576, the case having been rightly determined on the merits, it was held com