as to the judgment, let it be certified up and be heard by the full bench sitting at the capitol. It was moved that the amendment by Judge Brown be tabled. The Vice President:-The amendment is laid on the table. We now go back to the original proposition, and that is, the adoption of the report of the committee. Mr. Biggs:-I move the report of the Committee be adopted as relates to the Ohio plan. Motion seconded. The motion having been made and seconded it was put to a vote of the Association, and passed by an unanimous vote, and declared carried by the Chairman. The Vice President:-I notice the next subject on the program is the report of the Committee on Judicial Administration and Remedial Procedure, by Mr. L. D. Smith, Chairman. Mr. Smith:-I will pass it to the Secretary and have him read it. Report passed to and read by the Secretary as follows: REPORT OF COMMITTEE ON JUDICIAL ADMINISTRATION AND REMEDIAL PROCEDURE. Notwithstanding this committee has in the past suggested changes intended to improve our judicial system and to correct some of the evils of the procedure therein, practically nothing has been accomplished by legislation or otherwise to excite observation or comment. The policy of gradualism in the development of procedure has been pursued by the Association until it is now believed only radicalism can induce even conservative action. The lack of interest in the improvement of our system may be taken by some as an indication that the profession is entirely him satisfied with it, but the manifest need of improvement leads us to believe that the profession has rather dispaired of practical reform. The only important modification in procedure that has occurred in recent years is to be found in the new equity rules promulgated by the Supreme Court of the United States. We have hardly had time to judge of their practical value, but it cannot be denied that there existed a widespread demand for improvement and the investigation and thought devoted to their preparation by their eminent authors commend them to our favorable consideration. Your committee believes that these rules can be applied to our chancery practice, and recommends that they be adopted in Tennessee, not only for the sake of uniformity, but for their inherent virtues. There is one manifest defect in our present chancery practice that can be readily and beneficially changed. Under the present practice unless the court is in session it requires sixty days to get a bill at issue. A simple statute entitling the complainant to a judgment pro confesso on the day following the return day of the process, if no defense has been made, would remedy this defect; and the statute should require all defenses to be embraced in the answer. The profession is still restless under the delays incident to the appearance term in our circuit court practice. Some practical suggestions were made with respect to this subject by a special committee at the last session of the Association, and that committee is to report again to the present session. It is to be hoped that the Association will take some practical action with respect thereto. There is a universal demand for the abolition of the appearance term. Another subject of importance to which the Association has given some attention at the meetings without any practical results is that which was so ably presented to the Association by its present President when he was chairman of this committee reported to the last session held at Nashville and which has been emphasized by the American Bar Association, in favor of special findings by juries and the pronouncements of judgments on all questions of fact, leaving open only questions of law upon appeal. No better statement of the reasons in favor of reform along this line can be given than those found in the report above referred to. (See Proceedings of Bar Association of Tennessee, 1911, Page .) It has been suggested in some quarters that all the defects in our system can be cured by the adoption by the court of rules of practice, and some are disposed to be content with legislation empowering our judges to adopt such rules as they deem adequate to that end. We do not concur in that view. The judges are too prone to serve their own conscience and are too far removed from the bar to have that lively appreciation of the defects in the system essential to ideal practice. Some of the judges want too many rules, others too few; beside, why should not the lawyers have a say in the enactment of law regulating procedure? Furtherfore we believe the defects are too vital for so mild a remedy. The whole system needs heroic treatment. Unquestionably our system is not ideal. Shall we cease to struggle for the ideal merely because we may not hope to attain it? It may be properly doubted whether we can approach the ideal under our constitutional limitations, but we believe all will agree that important improvements can be made. In considering changes we should keep in mind not merely the wisdom of avoiding unnecessary delays in the administration of the law, but our guiding star should be the attainment of correct determination of controversies. Avoiding delays is only one means to the latter end, the main object of court procedure. We would make changes in our system of judicial administration and procedure along the following general lines: 1. Provide for the election of county judges in every county, more than one in each county, if necessary to hold the county county courts. Separate the office of county judge entirely from the fiscal affairs of the county. Let that be attended to by some county commission. Confer upon the county court not only jurisdiction of all probate matters, but of all criminal cases of the grade of misdemeanors and of felonies in cases of submission, and of all civil cases of all kinds, whether of an equitable, common law or statutory nature, where the amount involved is under one thousand dollars. 2. Abolish all the circuit and chancery courts and instead create a sufficient number of district courts to expedite the hearing of all litigation not triable in county courts. Confer on the district courts jurisdiction of all criminal cases of the grade of felonies, and of all civil cases where amount involved is one thousand dollars or over. Maintain our present distinction between law and equity cases, but apply the same method of procedure to both. 3. Abolish the present system of pleading and instead require the plaintiff or complainant to file his petition or complaint sworn to as a basis of the issuance of process. Abolish the general issue and require the defendant to answer under oath, setting forth his defenses specially. Do away with the appearance term, provide for rule days and chamber action by the court. Have no jury trials except where specially demanded, and then only upon special issues of fact set forth in the pleadings or in the demand. Abolish general verdicts of juries and require the judges to charge only upon the questions of law applicable to the issues submitted. Prohibit the practice of writing treatise by the judge in his charge, but let the charge be simply the law of the case made up with the assistance of counsel and be given to the jury before argument. Adopt the same procedure in all civil cases both in the county and district courts. Let the majority of the jury report a verdict, unless the parties in their pleadings demand a unanimous verdict, and in that case let the concurrence of nine of the jury constitute a verdict. a 4. In lieu of the present Court of Civil Appeals create a court of appeals composed of nine judges elected from the State at large to sit in three sections. Confer jurisdiction upon the Court of Appeals to all appeals-appeals going directly to that court from the county or district court to that section most convenient geographically. Allow a review by the Court of Appeals of the facts of all cases and power to reverse and remand for new trial where the great weight of the evidence is against the verdict or judgment. Let the findings of fact by the Court of Appeal be final and conclusive in all cases. The record of causes for the Court of Appeals should contain a tran script of all the evidence just as it was given in the court below if either party requires it, but the parties should be required to file a printed or typewritten statement of the facts as he claims them to be. No certiorari shall be to the decision of the court to the Supreme Court, except in cases involving two thousand dollars in value, or involving revenue or constitutional questions. 5. Let the Supreme Court hear and determine causes only upon certiorari to the Court of Appeals and determine only the questions of law. There should be a provision requiring the Supreme Court to act upon all certioraris within some reasonable time without regard to whether they are in session at Nashville, Jackson or Knoxville. The record for the Supreme Court should consist only of the findings of fact by the Court of Appeals and such exceptions thereto as either party may see proper to submit. Such exceptions to certain specific reference to the original record where the evidence is to be found. 6. The Legislature should adopt a judicial code establishing the various courts, setting forth their jurisdiction and procedure, leaving to the judges no power to make rules except for the orderly conduct of business. 7. This Association should appoint a special committee with directions to draft such a code embodying the above suggestions or such as the sense of the Association may approve and report the same to the next meeting, to the end that the Association may adopt a full code of judicial administration and remedial procedure, one that will meet the judgment of the Association and that can be earnestly advocated before the legislature. Respectfully submitted, L. D. Smith, Chairman. Jos. C. Higgins, H. M. Taylor. The Vice President:-Gentlemen, you have heard the report of the Committee on Judicial Administration and Remedial Procedure. What shall be done with it? It is moved and seconded that the report be adopted. |