to be ex parte, and the same term is applied to the motions upon which they are granted. Ex parte special motions must be supported by affidavit, and are uncommon, being usually granted to prevent irreparable injury to the moving party, which would otherwise occur if notice were given. Applications to set aside ex parte orders should be readily granted by the court. It is impossible to lay down any clear rule defining such motions as may be made ex parte, and distinguishing them from such as require notice.10 Contested motions are made on notice to the adversary party, where he is afforded opportunity to resist the application. They can only be heard on notice.11

8 417. Who may make a motion.

A motion may be made by or on behalf of any party to the record, provided he is not in contempt.12 A party in contempt, and until he is purged of it, will not be permitted to ask for the favor of the court, nor to take any aggressive proceeding against his adversary; but it is his right to take measures to protect himself, and to make any motion designed to show that the order adjudging him in contempt was erroneous. He may move to discharge an order, though in contempt for not obeying it. And if a party may move to set aside or discharge an order as erroneous, to rid himself of contempt, he may, it must follow,

Pratt v. Rice, 7 Nev. 123; Foster, Fed. Pr. § 196; 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1599; Hart v. Small, 4 Paige (N. Y.) 551; Collinson v. 18 Ves. 353.

10 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1593.

11 Anderson, Law Dict.; Sturz v. Fisher, 15 Misc. Rep. 410, 36 N. Y. Supp. 893. Rule 3 of the chancery rules of the circuit and superior courts, respectively, of Cook county, Illinois, provides that contested motions shall be deemed to include all motions relating to the settling of pleadings, for alimony and solicitors' fees, for injunctions upon notice, to dissolve injunctions, for the appointment and removal of receivers, the hearing of exceptions to masters' and receivers' reports, and all other opposed motions, the hearing of which would operate to unduly delay the court in its other duties.

12 Beach, Mod. Eq. Pr. § 555; 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1591; Stone v. Byrne, 5 Brown, Parl. Cas. 209; O'Dell v. Hart, 1 Molloy, 492; Callender v. Painesville & H. R. Co., 11 Ohio St. 516.

take any other course which the law allows to a party to estab lish that it is erroneous, and an appeal or a review of it in an appellate court is such other course.18 An attachment issued against a party after he has served a notice of motion, but before the motion is made, will not prevent his making it.1 As a general rule, no motion can be made in a cause by one not a party to it, except that he be made a party;15 but a person who is quasi a party to the record, such as a claimant coming in under a decree, or a purchaser of an estate sold by an order of the court, may apply to the court in this manner, though it was formerly considered that he could only do so by petition."

418. Notice of motions.

The necessity of giving notice of the motion to an adverse party is usually regulated by statute or rule of court, and varies in the different jurisdictions. The notice of motion is a statement in writing of the terms of the motion, which must be served upon the adverse party or his solicitor before the day on which the motion is intended to be made.17 It is entitled in the cause in which the application is to be made, and should be correctly addressed to the solicitor of the party intended to be affected, or to the party himself, where he acts in person, or personal service is intended, and be signed by the name of the solicitor of the moving party, or of the party himself, where he acts in person. It must designate the day on which the motion is to be made, which must be one of the days appointed for such motions, unless special leave has been obtained to give the

13 Brinkley v. Brinkley, 47 N. Y. 40. See, also, Johnson v. Pinney, 1 Paige (N. Y.) 646; Rogers v. Paterson, 4 Paige (N. Y.) 450; Lane v. Ellzey, 4 Hen. & M. (Va.) 504; Robinson v. Owen, 46 N. H. 38; Kaehler v. Dobberpuhl, 56 Wis. 497; Freese v. Swayze, 26 N. J. Eq. 437. See post, § 559.

14 Jeyes v. Foreman, 6 Sim. 384.

15 Ross v. Titsworth, 37 N. J. Eq. 333; Beach, Mod. Eq. Pr. § 555; Linn v. Wheeler, 21 N. J. Eq. 231.

16 Thornton v. Fairfax, 29 Grat. (Va.) 669; 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1591; Jones v. Roberts, 12 Sim. 189; Portarlington v. Damer, 2 Phillips, 264.

17 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1593.

notice of the motion for another day.18 The notice, however, though it expresses the day when the motion is to be made, usually adds, "or so soon thereafter as counsel can be heard."19 When the motion is to be made by leave of court, the notice should mention that it is to be so made; otherwise it may be disregarded.20 It should state clearly the terms of the order to be asked for, and, where the object is to discharge an order for irregularity, it is usual, but not necessary, to state the ground of the application.21 It may include several objects, as for the appointment of a receiver, an injunction, and the payment of money into court.22 The court will not ordinarily extend the order beyond the notice, and therefore it is usual to add a prayer for general relief, under which other relief, germane to that, a motion for which has been specifically noticed, may be granted.23 It is also usual to specify before what judge the motion will be made, and what affidavits and other documents will be used in its support.24 All notices of motion for any process of contempt. or commitment should be served personally upon the party to be affected by it, unless an order has been previously obtained for substituted service.25 A copy of the papers upon which a special motion is founded must be served upon the adverse party; but if the papers to be used are already in the possession of the party, or are on file, or of record in the court, they may be referred to in the notice, and copies need not be served.20

181 Barbour, Ch. Pr. 570; 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1594; Foster, Fed. Pr. § 197.

19 Anonymous, 1 Johns. (N. Y.) 143. See White v. Rockafellar, 45 N. J. Law, 299.

20 Hill v. Rimell, 8 Sim. 632.

21 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1594.

22 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1595.

28 Landis v. Olds, 9 Minn. 90; 1 Barbour, Ch. Pr. 570.

24 Foster, Fed. Pr. § 197.

251 Barbour, Ch. Pr. 573; Mullens v. Williamson, 2 Molloy, 380.

261 Barbour, Ch. Pr. 573; Brown v. Ricketts, 2 Johns. Ch. (N. Y.)

425.

By appearance at the hearing, and failure to object to want of due notice, service of notice is waived.27

§ 419. Proof of service of notice.

pear.

After the notice of motion has been served, the party serving the same should make an affidavit of the service, to be used when the motion is made, in case the party served should fail to apThis affidavit should state the time and manner of service, and should be attached to the original papers and draft of the notice of which copies were served, and should refer thereto. A simpler method of proving service than by affidavit is to take an admission, signed by the opposite solicitor or his agent, of service of the copies of affidavits, notice, and other papers, dated a sufficient number of days before the time the motion is to be made, or an admission of due service without the date.2

28

§ 420. Form of notice of motion, with proof or admission of service.

[Title of court and cause.]

To L. M., Esq., Chicago, Ill., Solicitor for Said Defendant, C. D.:

You are hereby notified that on Thursday, the 25th day of October, A. D. 1900, at 10 o'clock a. m., or as soon thereafter as counsel can be heard, we shall, before his honor, Judge M. F. T., in the room usually occupied by him as a court room in said county, move that [specify the object of the motion], and for such other order or relief as the court may think proper to grant, which motion will be founded on affidavits, with copies of which you are herewith served [and on the bill and answer filed in this cause], at which time and place you may appear if you see fit.

Dated, Chicago, Ill., October 20, A. D. 1900.

G. H., being first duly sworn, deposes and says that he served the within notice, and affidavits therein referred to, on C. D., defendant in

27 Blyth v. People (Colo. App.) 66 Pac. 680; Kimbrough v. J. K. Orr Shoe Co., 98 Ga. 537, 25 S. E. 576.

28 1 Barbour, Ch. Pr. 573.

the above-entitled cause, by leaving true copies of the same with him [or upon C. D., defendant in the above-entitled cause, by leaving true copies of the same with L. M., his sclicitor; or upon C. D., defendant in the above-entitled cause, by leaving true copies of the same with R. S., a person in charge of the office of L. M., the solicitor for the said C. D., in the absence of the said L. M. from said office] on the 20th day of October, A. D. 1900, at the hour of 10 a. m. And further affiant saith not.

G. H.

Subscribed and sworn to before me this 20th day of October, A. D.

1900.

N. M., Notary Public.

If the party upon whom notice is served admits receipt of a copy, the affidavit may be dispensed with, and the following form used:

Received a copy of the within notice and affidavits therein referred to this 20th day of October, A. D. 1900.

L. M.,

Solicitor for Defendant, C. D.

If service of the notice is accepted, the following form may be used:

Due and sufficient service of the within notice and affidavits therein referred to is accepted this 20th day of October, A. D. 1900.

C. D., Defendant,
By L. M., His Solicitor.

$421. Hearing of motions.

The day for which motions may be noticed is usually fixed by rule of court, and must be observed. It is usually the practice of the court, whenever there are any ex parte motions, to give them the preference over such as are opposed. Therefore, as a rule, motions of course are heard before contested motions.29 Under the former English chancery practice, motions were heard in the order of the rank of counsel; consequently much injustice was done to the less prominent solicitors. This rule was abolished by Lord Mansfield, whose practice in this regard was followed by the court of chancery, and who provided that

291 Barbour, Ch. Pr. 574. For practice in federal courts on hearing of motions, see United States Equity Rules 3, 4, 6.