The practice in nearly every jurisdiction is largely regulated by rules. It is the undoubted province of courts of record to establish reasonable rules of practice. Such power is inherent and independent of any statute.1 Unless such power existed, it would be extremely difficult, if not impossible, for courts of justice to dispatch the public business. Delays would be interminable, for delay is not infrequently the object of one of the parties. While such power exists, nevertheless it must be exercised subject to the qualification that such rules must not controvert the law of the land. There is a wide difference be

1 Thompson, Trials, § 205; Crotty v. Wyatt, 3 Ill. App. 388; Fullerton v. United States Bank, 1 Pet. (U. S.) 604; Cone v. Jackson, 12 Colo. App. 461, 55 Pac. 940; Town of Trinidad v. Simpson, 5 Colo. 65; Coyote, G. & S. M. Co. v. Ruble, 9 Or. 121. Illustrative of rules of court are the Rules of Practice for the courts of equity of the United States, adopted by the United States supreme court in 1866. See post, Appendix B.

2 Snyder v. Bauchman, 8 Serg. & R. (Pa.) 336.

Rev. St. U. S. § 918, confers upon the federal circuit and district courts the power to make rules and orders directing the return of writs and processes, the filing of pleadings, entering of judgments by default, and to otherwise regulate their own practice. For construc tion of this statute, see Saylor v. Taylor, 77 Fed. 476; Ward v. Chamberlain, 2 Black (U. S.) 437. For construction of Florida statute providing that the United States equity rules shall apply to suits in chancery, see Kahn v. Weinlander, 39 Fla. 210, 22 So. 653.

8 Fisher v. National Bank of Commerce, 73 Ill. 34; Beveridge v. Hewitt, 8 Ill. App. 467; People v. McClellan, 31 Cal. 101; State v. Judges, 37 La. Ann. 596; Hinchly v. Machine, 15 N. J. Law, 476; Suck ley's Adm'r v. Rotchford, 12 Grat. (Va.) 60, 65 Am. Dec. 240; Main v. Lynch, 54 Md. 658. Where a matter is left to the discretion of the (384)

tween the power of a court upon a question of jurisdiction and its authority over its mode of proceeding and process. A court cannot enlarge or diminish its jurisdiction by rules of prac tice."

§ 359. Adoption of rules.

There is a difference of opinion regarding the necessity of placing rules regulating practice upon the records of the court. It is, of course, always better that such rules be adopted of record by the court. In some jurisdictions it is held that, to make a rule valid, it must be in writing, and spread upon the records of the court, and reasonable publicity given it." In other jurisdictions it is held that it is not essential that rules of practice be embodied in writing. When adopted and published, rules have the force and effect of law, and are obligatory upon the court, as well as upon parties to causes pending before it."

6

court, a rule restricting such discretion is void. De Lorme v. Pease, 19 Ga. 220; Larned v. Platt, 26 Ill. App. 278. It is held that a rule providing for the dismissal of a suit in which no order of progress has been made and entered of record for one year or more is not improper. Cone v. Jackson, 12 Colo. App. 461, 55 Pac. 940. It is said that rules are framed to bring a cause to a hearing, and do not apply after a cause has been heard, unless some proceedings are taken to bring it within their operation again, and to start it anew towards a hearing. Allen v. City of New York, 7 Fed. 483.

Steamer St. Lawrence, 1 Black (U. S.) 522; Rozier v. Williams, 92 Ill. 187.

5 Illinois Cent. R. Co. v. Haskins, 115 Ill. 300, 2 N. E. 654; Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573, 36 N. E. 572; Owens v. Ranstead, 22 Ill. 161; State v. Ensley, 10 Iowa, 149. For form of record adopting rules of practice, see Gage v. Eddy, 167 Ill. 102, 47 N. E. 200.

• Duncan's Heirs v. United States, 7 Pet. (U. S.) 435; Fullerton v. Bank of United States, 1 Pet. (U. S.) 604. See Lowry v. Story, 31 Fed. 769; Maloney v. Hunt, 29 Mo. App. 379; Smith v. Lee, 10 Nev. 208.

Elliott, Gen. Pr. § 186; Lancaster v. Waukegan & S. W. Ry. Co., 132 Ill. 492, 24 N. E. 629; David v. Aetna Ins. Co., 9 Iowa, 45; Pratt v. Pratt, 157 Mass. 503-505, 32 N. E. 747; Rout v. Ninde, 111 Ind. 597, 13 N. E. 107; Magnuson v. Billings, 152 Ind. 177, 52 N. E. 803; Walker v. Ducros, 18 La. Ann. 703. Rules of court, while in force, constitute rules of law regulating the practice in the court by which they are adopted. Litigants and their solicitors are not chargeable with negligence in (385)

$ 360. Suspension of rules.

Whether or not the court can disregard its rules is involved in some confusion. In some jurisdictions it is held that such rules have the force of statutes, and are binding upon the court, as well as upon the parties, until rescinded. In other jurisdictions it is declared that the court has power to suspend its rules or except from their operation a particular case, when justice requires it."

assuming that such rules will be pursued and enforced. Consolidated Rapid Transit & Elevated R. Co. v. O'Neill, 25 Ill. App. 313.

8 Beveridge v. Hewitt, 8 Ill. App. 467; Wall's Ex'x v. Wall, 2 Har. & G. (Md.) 79; Pratt v. Pratt, 157 Mass. 503, 32 N. E. 747, 21 L. R. A. 97; Rio Grande Irrigation & Colonization Co. v. Gildersleeve, 174 U. S. 603; Haulenbeck v. Cronkright, 23 N. J. Eq. 407; Witzler v. Collins, 70 Me. 290, 35 Am. Rep. 327; Baker v. State, 84 Wis. 584, 54 N. W. 1003; Hughes v. Jackson, 12 Md. 450; State v. Edwards, 110 N. C. 511, 14 S. E. 741; Coyote, G. & S. M. Co. v. Ruble, 9 Or. 121. Courts of general jurisdiction are presumed to have complied with their own rules of practice, unless the contrary is clearly shown. McClure v. Sandford, 3 Colo. 518; Cone v. Jackson, 12 Colo. App. 461, 55 Pac. 940.

People v. Williams, 32 Cal. 280; Pickett v. Wallace, 54 Cal. 147; Southern Pac. Co. v. Johnson's Adm'x, 44 U. S. App. 1, 69 Fed. 559; Southern Pac. Co. v. Hamilton, 7 U. S. App. 626, 54 Fed. 468; GilletteHerzog Mfg. Co. v. Ashton, 55 Minn. 75, 56 N. W. 576; Eastman v. Amoskeag Mfg. Co., 44 N. H. 143, 82 Am. Dec. 201; De Leon v. Owen, 3 Tex. 153; Sullivan v. Wallace, 78 Cal. 307, 14 Pac. 789; Hume v. Bowie, 148 U. S. 245.

Perhaps the following language from a Maine decision may tend to reconcile the authorities on this point: "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, 20 How. (U. S.) 252, be suspended or modified in their operation, when, in the judgment of the court, convenience or justice may require it; or perhaps, as in Law v. Law, 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

361. Construction of rules.

It is held in some jurisdictions that rules of court enacted by statutory authority, and mandatory in their terms, are construed in the same manner as statutes.1 10 It is also held that the court should lean in favor of giving to the litigants every reasonable opportunity of presenting their cases on the merits, and rules of procedure should be made to serve their true purpose of expediting and facilitating the disposition of cases according to their merits, and should not be converted into a means of obstruction,11 and must not, by a literal interpretation, be extended to cases not within the object of them.12 In some jurisdictions it is held that, upon a question of the construction or application of its own rules, a court can be reversed only for manifest and material error.18

§ 362. Rules operate prospectively.

14

It is generally true that rules of court operate prospectively.14 They may be made to operate upon pending suits by expressly only by the party for whose benefit it was made. Winnisimmet Co. v. Town of Chelsea, 6 Cush. (Mass) 483." Witzler v. Collins, 70 Me. 290, 35 Am. Rep. 327. See, also, Tindal v. Tindal, 1 Rich. (S. C.) 111; Magill's Appeal, 59 Pa. 430; Green v. Elbert, 137 U. S. 615. For cases where the court has suspended its rules, see Lance v. Bonnell, 105 Pa. 46; First Nat. Bank of Plattsburgh v. Post, 65 Vt. 222, 25 Atl. 1093; Southern Pac. Co. v. Johnson's Adm'x, 44 U. S. App. 1, 69 Fed. 559. Parties have no unqualified right to stipulate for the abrogation of rules prescribed by the court. Reynolds v. Lawrence, 15 Cal. 359.

10 Dunbar v. Conway, 11 Gill & J. (Md.) 92; Butler v. Butler, 11 Ala. 668; Seymour v. Phillips & Colby Construction Co., 7 Biss. 460, Fed. Cas. No. 12,689; Rathbone v. Rathbone, 4 Pick. (Mass.) 89.

11 Flagg v. Puterbaugh, 98 Cal. 134, 32 Pac. 863.

12 Ferguson v. Kays, 21 N. J. Law, 431.

13 Bair v. Hubartt, 139 Pa. 96, 21 Atl. 210; Morrison v. Nevin, 130 Pa. 344, 18 Atl. 636; Mix v. Chandler, 44 Ill. 174; Evans v. Backer, 101 N. Y. 289. See, however, Witzler v. Collins, 70 Me. 290, 35 Am. Rep. 327; Dunbar v. Conway, 11 Gill & J. (Md.) 92; Gannon v. Fritz, 79 Pa. 303; Hunter v. Union Life Ins. Co., 58 Neb. 198, 78 N. W. 516.

14 Owens v. Ranstead, 22 Ill. 161; Risher v. Thomas, 2 Mo. 98. See Poyntz v. Reynolds, 37 Fla. 533, 19 So. 649; Rawlings v. Neal, 122 N. C. 173, 29 S. E. 93.

so stating,15 but, if not so expressly stated, they do not apply to pending actions.16 A rule retrospective in its terms, and which is in its nature an act of limitation, is void.17

§ 363. Amending rules.

A court may modify or rescind its rules.18 It is held that such rules can only be abolished in the same manner in which they are made.19 Amendments to rules operate prospective

ly.20

§ 364. Proof of rules.

Courts take judicial notice of their own rules, and therefore they need not be proved.21 It is a general rule that courts of review do not take judicial notice of the rules of the court below, but such rules must be incorporated in the record.22

15 Chain v. Hart, 140 Pa. 374, 21 Atl. 442; Coffin v. McClure, 23 Ind. 356.

16 Steamer St. Lawrence, 1 Black (U. S.) 522.

17 Reist v. Heilbrenner, 11 Serg. & R. (Pa.) 131.

18 Chielovich v. Krauss (Cal.) 9 Pac. 945; Consolidated Rapid Transit & Elevated R. Co. v. O'Neil, 25 Ill. App. 313.

19 Burlington & Missouri River R. Co. v. Marchand, 5 Iowa, 468; Treishel v. McGill, 28 Ill. App. 68.

20 Rawlings v. Neal, 122 N. C. 173, 29 S. E. 93; In re Warde, 154 N. Y. 342, 48 N. E. 513; In re Day, 181 Ill. 73, 54 N. E. 646.

21 Rout v. Ninde, 111 Ind. 597, 13 N. E. 107.

22 Anderson v. McCormick, 129 Ill. 308, 21 N. E. 803; Roby v. Title Guarantee & Trust Co., 166 Ill. 336, 46 N. E. 1110; Rout v. Ninde, 111 Ind. 597, 13 N. E. 107; Truitt v. Truitt, 38 Ind. 16; Stockbridge v. Fahnestock, 87 Md. 127, 39 Atl. 95; Kindel v. Le Bert, 23 Colo. 385, 48 Pac. 641. See, however, Contee v. Pratt, 9 Md. 67; Huebner v. Farmers' Ins. Co., 71 Iowa, 30, 32 N. W. 13; Dunn v. Bozarth, 59 Neb. 244, 80 N. W. 811; Harris v. Burris, 1 Tenn. Cas. 80. Where a motion is made to remand a case to the state court on the ground that the application was not filed in time, the federal court cannot take judicial notice of the rule and practice adopted by the state court under statutory authority, by which the time in which pleadings might be filed was extended beyond the date fixed by general statute. Yarnell v. Felton, 104 Fed. 161. It is held in Illinois that the record in which rules of courts are entered is the only competent evidence to prove their existence. Roby v. Title Guarantee & Trust Co., 166 Ill. 336, 46 N. E. 1110; Davis v. Northwestern Elevated R. Co., 170 Ill. 595, 48 N. E. 1058.