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petent for the court below to suspend the operation of its rules providing "that an order to show cause must be accompanied by a notice of motion setting forth the grounds thereof, and that an order to show cause should not be granted when a motion can be made in the ordinary form, upon notice."

In Eastman v. Amoskeag Mfg. Co. (1862) 44 N. H. 143, 82 Am. Dec. 201, it was held that the suspension of a rule of court dealing with the competency of counsel to testify was within the discretion of the lower court.

In Sanborn v. Boston & M. R. Co. (1911) 76 N. H. 65, 79 Atl. 642, it was held that the trial justice had acted within his authority in suspending a rule of court and allowing plaintiff's motion for leave to amend his declaration by striking out the count in assumpsit, and substituting a count in case for personal injuries.

In Sargent v. Corbley (1905) 28 Ohio C. C. 125, it was objected that the probate court, in appointing as administrator of an estate one who was a resident of another county, violated one of the court rules. It was said: "The rule of the probate court is not a principle of law, but a rule of the court's own making for the expedient transaction and despatch of business in said court; and if said court, for reasons satisfactory to itself, sees fit to break or waive such rule, it is not to be charged to it as an abuse of discretion. The appointment as made is clearly within the provision of the law, and is not so unsuitable as to justify the charge of gross abuse of discretion."

In Carpenter v. Thayer (1843) 15 Vt. 552, the supreme court held that it was not authorized, when sitting as a court of error, to reverse the action of the county court on that court's discretionary rules.

In National Union Bank v. Marsh (1874) 46 Vt. 443, the defendant's pleas were not filed in time, according to the rules of court, but by special leave of court, and within the period prescribed by the court's order. It was said: "It is a necessary incident to

the trial of causes that the court should have power to allow pleadings to be made or modified, as shall best subserve justice. And when the discretion of the court has been exercised, it is not a ground of exception."

In McNeish v. U. S. Hulless Oat Co. (1884) 57 Vt. 316, the county court had admitted a deposition concerning which there was a question as to whether it was taken in violation of a rule of court. The court said: “The question is, Was it error thus to admit it? Whatever may be held in regard to its inhibition by the rule, to find error in its admission, it must be held that the county court did not exercise its discretion in regard to the enforcement of the rule. It is a sufficient answer that the exceptions do not assert that it did not exercise its discretion. Error must appear."

In Hudson v. Kline (1852) 9 Gratt. (Va.) 379, a case apparently not within the scope of the annotation, it was said: "By rules of court an answer to an injunction bill is generally required to be filed within a certain time after the execution of the subpoena, or the defendant is not allowed to move a dissolution until a certain time has elapsed after the answer is filed. But these rules are subject to the discretion of the court to which they belong, and if disregarded by such court, its decree cannot, on that ground, be reversed. Of them the appellate court can take no judicial cognizance."

In Washington Bank v. Horn (1901) 24 Wash. 299, 64 Pac. 534, it was urged that the trial court, in ordering the complaint in the action to be filed immediately, had acted in disregard of a rule of court which allowed a period of twenty-four hours for that purpose. It was held that since this was a rule of the court, it might be suspended for good reasons.

In Sylvester v. Olson (1911) 63 Wash. 285, 115 Pac. 175, it was said that a trial court was not bound by the local rule of procedure requiring that motions filed with the clerk of the court must be verified in a certain manner. Disregard thereof was held not to be error.

c. Rule in Illinois. In Illinois there are several decisions upholding the view that a trial court's violation of its own rules constitutes ground for relief on appeal.

In Treishel v. McGill (1888) 28 Ill. App. 68, it was held that a trial judge acted without legal authority in signing a bill of exceptions during vacation, where it appeared that the appellant had not served the bill of exceptions or copy thereof on the appellee or his attorneys five days before the presentation to the trial judge, as required by the rules of practice of the court. The court said: "The rule in question being the law of the court, the order granting time to sign the bill of exceptions in vacation must be regarded as made with reference to the rule of court, and the rule taken as a part of the order. The judge would have no discretion or power in vacation to depart from the term of the order or rule. Hence, the signing of the bill of exceptions without compliance with the rule was an act of the judge, without legal authority."

In Feldott v. Featherstone (1919) 290 Ill. 485, 125 N. E. 361, the action of the circuit court in entering a default without notice, in violation of a rule of court which required at least two days' notice to the opposite party of any motion, was held to be error, the court saying: "Rules of court, when entered of record, as was the case here, become the law of procedure in matters to which they relate, when not inconsistent with the statute, and are binding on the court."

In Beveridge v. Hewitt (1881) 8 III. App. 467, the complainants, who had failed to present their defense at a trial in the county court, were held not to be guilty of laches, where it appeared that the court had violated its own rules providing a method for the bringing of causes to trial. The court said: "So long as these rules remained in force they were the law of the court. It was not within the province of the court to enforce or dispense with them, as convenience might dictate, and parties were warranted in relying upon their enforcement and governing their conduct accordingly.

Were it otherwise, such rules, instead of simplifying and facilitating the business of the court, would become mere snares and traps for the feet of litigants." Nor, the court said, was the situation altered by the fact that the rules had already been disregarded by the trial court, to the knowledge of the parties.

In Consolidated Rapid Transit & Elev. R. Co. v. O'Neill (1888) 25 Ill. App. 313, it was held to be error on the part of the trial court to violate a rule of practice providing that, when contested motions were not reached on Monday, the day of the week specified for the calling of the calendar, they should go over to, and have precedence on, the following Monday. The court said: "The rules of court, so long as they remain in force, constitute rules of law regulating the practice in the court by which they are adopted; and while they may be abrogated or modified by the court, at its pleasure, so long as they are in force they should be followed; and litigants and their solicitors are not chargeable with negligence in assuming that such rules will be pursued and enforced." See also North Ave. Bldg. & L. Asso. v. Huber (1918) 286 Ill. 375, 121 N. E. 721, reversing (1917) 208 Ill. App. 271.

But in Steele v. Wynn (1908) 139 Ill. App. 428, wherein it was urged that the court below had violated certain of its rules, one of which required that evidence in default cases be written up and certified by the official stenographer and filed with the clerk, the contention was not given any weight, a number of reasons being offered by the court for its holding.

So, in Field v. Chicago, D. & V. R. Co. (1873) 68 Ill. 367, a case not exactly within the scope of this note, it was said: "But if it were true the court had violated one of its rules, we would not, for that reason alone, reverse, unless it was apparent that injustice had been done, which does not appear in this case."

In Hunt v. Pronger (1906) 126 III. App. 403, a case not directly within the scope of this discussion, it was said: "Even when the court acts contrary to

its rules, this will not be ground for reversal unless it is apparent that injustice has been done." See also Mix v. Chandler (1867) 44 Ill. 174.

The case of Klinesmith v. Van Bramer (1902) 104 Ill. App. 384, presents a decision varying somewhat from the other Illinois opinions. In that case it was alleged that the circuit court had violated its own rules in regard to the justification of a surety on an appeal bond and as to the necessity of giving notice to the opposite party before the hearing of motions or making of orders. The court held that it did not follow that a court of equity would set aside a judgment on such a ground, even if it was error so to disregard the rules.

d. Rule in Missouri.

In Kuh v. Garvin (1894) 125 Mo. 547, 28 S. W. 847, it was held that the trial court did not commit reversible error in permitting an amended interplea to be filed during the term, though, by rule of court, all interpleas had to be filed within the first two days of the term to which the writ was returnable. It was said: "Courts have control of their own rules, and it rests very much in their discretion as to whether they shall be rigidly enforced or not. We are not prepared to say that such discretion was abused or unreasonably exercised in this case. If plaintiffs were taken by surprise by the action of the court in permitting an amended interplea to be filed, they should have applied for a continuance upon that ground (Rev. Stat. § 2128); but as they did not do so, but proceeded with the trial, the objection must be considered as having been waived."

In Funkhouser v. How (1853) 18 Mo. 47, an early case, not directly in point, the inferior court refused to allow parties to interplead in violation of its rule prescribing the time therefor. It was said, on appeal, that if interpleader had been permitted the appellate court would not have interfered with such an exercise of discretion.

But in Maloney v. Hunt (1888) 29 Mo. App. 379, a judgment was reversed because the trial court, contrary to its rule of procedure, after putting the

usual pass mark opposite this case on its docket, gave it an unusual place on the docket, and later called the case up for trial without notice of the change to the attorney.

e. Rule in Montana.

In Roush v. Fort (1878) 3 Mont. 175, the court below heard a motion to strike out part of appellant's answer, in disregard of a rule of court which allowed parties a period of twentyfour hours to examine a motion before hearing. It was said: "Conceding that the action of the court was irregular in this matter, the rule was directory merely, and the appellant does not show or claim that he was injured thereby. If the ruling of the court below was correct upon the question before it, it would be unjust for us to reverse the judgment by reason of the infraction of the rule prescribing the time for hearing the motion."

In Martin v. De Loge (1895) 15 Mont. 343, 39 Pac. 312, a later case, the court took a somewhat different view. In that case it appeared that the court below had disregarded its rule which provided that agreements between the parties or their attorneys, in order to be enforced, must be in writing, or be made in open court, and entered in the minutes thereof. It was said: "We think that to affirm the decision of the court would be to hold that an established rule of procedure may be arbitrarily applied or abrogated without regard to the use of sound judicial discretion. Doubtless, rules of court may be rescinded or modified, at the just convenience of the court which makes them; but there should be some better reason for wholly ignoring them than the respondent relies upon in this case. The order setting aside the default is reversed."

1. Rule in New Jersey.

In Ogden v. Robertson (1835) 15 N. J. L. 124, an early New Jersey case, a judgment of the lower court was reversed, on the ground, inter alia, that that court had disregarded one of its rules of practice, regarding the issuance of a commission to examine an

absent witness. Speaking of the court's power over its own rules, it was said: "They may modify and rescind them; but, while in force, they are the law of the court, and, as such, a part of the law of the land."

The opinion in Larky v. Larky (1918) 88 N. J. Eq. 591, 103 Atl. 177, does not seem to be in agreement with the decision just cited. In that case it was urged by the appellant that an order made by the chancellor, under the rules of the court of chancery, should have been on the advice of the advisory master, and not of a vice chancellor. It was said: "The making, enforcement, and suspension of the rules of the court of chancery are the exclusive province of the chancellor, both by inherent power and by express legislative authority. Chancery Act, § 87, Comp. Stat. p. 444. Matters, therefore, resting wholly upon the rules of the court of chancery, and under the control of the chancellor, are not subject to review by this court."

g. Rule in Pennsylvania.

In Pennsylvania, in four cases, it has been held that a violation of court rules by a trial court constitutes reversible error.

In Brennan's Estate (1870) 65 Pa. 16, a decree of an orphans' court was reversed by the supreme court on the ground that the lower court had violated one of its own written rules, which required that notice should be given by an auditor where the time for making his report to the orphans' court was extended. It was observed that while it had often been held that courts were the best exponents of their own rules, nevertheless, where the rights of parties depended on their observance, the supreme court would enforce compliance therewith.

A judgment for the defendant was reversed in Todd v. Quaker City Mut. F. Ins. Co. (1899) 9 Pa. Super. Ct. 371, 43 W. N. C. 476, wherein the trial court plainly disregarded the rules of court by admitting in evidence certain matter of defense which was not set forth in a bill of particulars.

Pa. Super. Ct. 11, judgment was reversed because the court refused to observe a rule of court, fixing the time for the filing of a supplemental affidavit of defense.

In Fisher v. Fisher (1920) 74 Pa. Super. Ct. 538, it was held that a decree of divorce was properly set aside where it was shown that the court below had failed to comply with its own rule requiring the case to be put on the argument list, to be heard before final decree. The court said that the respondent was entitled to be heard on the findings of the master, and that the fact that the rule had frequently been violated in the past constituted no excuse for the court's action.

But there are two cases to the contrary, wherein it was held that it was not error for a trial court to disregard its own rules of practice.

In Lance v. Bonnell (1884) 105 Pa. 46, the court below allowed the plaintiff to file a motion for a new trial in violation of its own rule, which limited the time for such a motion. It was held to be proper for the court below, on a proper showing, to waive its own rule of practice.

So, in McBeth v. Newlin (1884) 15 W. N. C. 129, it was held to be proper for the trial court to seal a bill of exceptions after the expiration of the time provided therefor by its rules of practice. It appeared that the judge who tried the case had promised to do so at any time.

In the case of Logan's Assigned Estate (1906) 213 Pa. 218, 62 Atl. 843, a case not within the scope of this annotation, there is a statement which differs somewhat from both the views hereinbefore set forth. It was said therein: "Where a matter is within the discretion of the court, as this clearly was, and the substance of the rule is observed, a departure by the court from the form of the rule is immaterial." The rule in question was one which provided for a hearing on exceptions to confirmation of auditors' reports, and for the ordering of an issue by the court if, in its opinion, there was a question of fact to be tried

In Donoghue v. O'Kane (1913) 55 by a jury. 23 A.L.R.-5.

III. Rule in New York.

The New York cases do not lend themselves to analysis, for it is not always clearly apparent whether the rule of court under discussion was adopted by the trial court itself or by some other body. In several cases it has been held that a violation, by a special term of the supreme court, of a rule of practice (spoken of as a "rule of the supreme court," or a "general rule of practice"), constituted error.

In the case of Re Livingston (1866) 34 N. Y. 555, it was said that if the order in question was treated as an order made on motion, it was contrary to a rule of the supreme court which forbade "a second application on the same state of facts to be made to any other judge than the one who decided the original application." The order appealed from was reversed; but, as several grounds were discussed, it is impossible to determine whether the violation of the rule was relied on.

In People ex rel. New York v. Nichols (1879) 18 Hun, 530, reversed on other grounds in (1880) 79 N. Y. 582, it was said: "Assuming, therefore, that all the proceedings before the special term were regular down to the time when the order to show cause why Mr. Nichols should not have judgment upon the return was granted, it is quite clear that the respondent in that proceeding (the relator here) was entitled to the usual notice of any hearing that should be had at a special term in the certiorari proceedings. It was a right secured by the rule of this court, adopted in convention under a statute authorizing it, and possessing, therefore, all the force and vigor of a statute on the subject. It was a right of which, without legislation or a change in the rule by a convention of the judges, he could not be deprived. The order to show cause, therefore, issued on the 16th September, instant, the day after the return was filed, having been made returnable in less than the usual time for notice of argument, was unauthorized, and the exercise of any power under it should be prohibited."

In Ives v. Ives (1894) 80 Hun, 136, 29 N. Y. Supp. 1053, it was held to be

error on the part of the trial court to violate a rule of court which provided that "the court shall, in no case, order the reference to the referee nominated by either party, nor to the referee agreed upon by the parties." This rule supplemented a statute which, referring, inter alia, to actions for divorce, read as follows: "In a case specified in this section, where the parties consent to a reference, the court may, in its discretion, grant or refuse a reference; but where a reference is granted, the court must designate the referee." It was said: "We are not at liberty to disregard the rules of the court; they have the same force and effect that the statutes have; and we have no more right to disregard them than we have to disregard the statutes of the state. Re Moore (1888) 108 N. Y. 280, 15 N. E. 369. I think, therefore, that the court was in error in designating the person agreed upon by the parties to the action as the referee therein."

In Boyer v. Boyer (1908) 129 App. Div. 647, 114 N. Y. Supp. 15, it appeared that the supreme court, at special term, had appointed a receiver for the defendant, who had declined to pay alimony under a judgment in an action for a separation. This order was reversed on appeal, on the ground that the original decree and the order fixing alimony were invalid, since the decree had been entered in violation of one of the General Rules of Practice, providing as follows: "No judgment annulling a marriage contract or granting a divorce, or for a separation or limited divorce, shall be made of course by the default of the defendant, or in consequence of any neglect to appear at the hearing of the cause, or by consent." The court said that this mandatory rule of court had all the force of a statute, and no jurisdiction could be conferred on the court to disregard it.

Violation of a rule was held to be error in Carpenter v. Pirner (1907) 107 N. Y. Supp. 875, although it will be noted that the rule in that case was one established by the trial court (the municipal court) itself, and was included also in the General Rules of

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