Sec. 17. Instituting suit. A legal proceeding is initiated when
the plaintiff files with the clerk of the court a complaint, a declara-
tion, or a petition, as the case may be, depending upon the jurisdic-
tion. This paper, called the "first pleading," has for its purpose
the statement of alleged facts upon which the plaintiff rests his
cause of action. The pleading indicates the remedy he desires and
serves to inform the defendant of the nature of the lawsuit. Upon
the filing of the complaint or petition, a summons is issued out of
the office of the sheriff and served upon the defendant. Some-
times, particularly if the remedy sought is in equity, a copy of the
complaint or petition is delivered to the defendant.
Suits at law firms or in equity under Modern Practice Acts are called
"civil actions," as distinguished from criminal actions, proceedings
in attachment, ejectment, eminent domain, forceable entry and de-
tainer, claim and delivery, and other proceedings regulated by spe-
cial statutes. ^IbaLactioerS arising out of injuries to property or
persons are called "tort actions," and suits for damages arising out
of breach of contract are included within the term "civil actions."
Suits which seek specific performance of contracts, bills for account-
ing against trust officers, also suits to prohibit injurious conduct
and continuing trespass upon real property, are called "equitable
Sec. 18. The summons. The clerk of the court issues the sum-
mons, which the sheriff of the county serves upon the defendant.
The following is the usual form of a summons :
In the Name of the People of the State of Illinois. In the
Court of County, Illinois.
To the above named defendants:
You are hereby summoned to answer the complaint in the above en-
Take notice that you must file your answer or otherwise make your
appearance in said court held in the court house in the city of ,
Illinois, on or before the first (or third) Monday in the month of
, 19 . . , provided this writ shall be served upon you not less
than 20 days prior to said date.
If this writ shall be served upon you less than 20 days before said date,
you will file your answer or otherwise make your appearance in said
court on or before the third (or first) Monday in the month of ,
If you do not appear according to the command of this writ, plaintiff
may take judgment against you by default.
This summons must be returned by the officer or other person to whom
it was given for service, with indorsement thereon with service and fees,
if any, not later than 5 days after service thereof and in no event later
than the date first above named.
WITNESS the clerk of said court and the seal
thereof, at , Illinois, this day of ,
Plaintiff's attorney (or plaintiff, if he be not represented by attorney)
Sec. 19. Service of the summons. The sheriff, upon receipt of
a summons, proceeds at once to search out the defendant. The de-
fendqjit must be served personally ; that is r the sheriff mustjeave a
GOBY of the summons with the dgf^nflant, in pprsnn A corporation
is served with process when a copy of the summons is left with its
president, if he can be found in the county in which the suit is
brought ; if the president cannot be found in the county, then serv-
ice may be had if a copy of the summons is left with any agent of
the corporation found in the county. The method of service is not
always the same in the various states. In a few jurisdictions the
summons may be left with an adult member of the defendant's
household or with some person at the defendant's place of business.
A defendant may waive service of process and enter his appear-
ance, or he may authorize his attorney to accept service for him.
Such entry of appearance must be in writing and must be made a
part of the record, in order that jurisdiction may be had over the
person of the defendant.
Sec. 20. Return of summons. A definite period of time is pre-
COURT PROCEDURE 15
scribed by statute within which a sheriff must make service and re-
turn the summons to the clerk. For example, in jspnieJuiisdkiioBS
service must be had twenty days before the court convenes. Other-
wise, the suit goes over to the next term for want of service. When
the summons is served, the sheriff indorses in writing on the back of
the summons when, where, and upon whom served, with a state-
ment of his fees. This procedure is called the sheriff's "return."
Sec. 21. Judgment by default. After the return of the sum-
mons by the sheriff, the court has jurisdiction over the person of
the defendant. The defendant must show why judgment should
not be entered against him. Jf the defendant fails to defend his
case by filingjproper pleadings, or fails to appear within a definite
period of tmie]Ta. jiidgmeritf wni hp S"^^^s g ^Rt f Jii^J^rjg T it .of
plea or of appearance^ This jnHgmpnt is nflllprj a j^Hgmpnt, hy de-
fault^ -The plaintiff may then proceed to prove his damages and to
secure judgment for damages and costs. After proof, the court en-
ters the amount of damages 'and costs upon the court docket, which
stands as a judgment against the defendant as shown by the record
of the court.
Sec. 22. Framing the issues. As heretofore stated, the first
pleading must clearly and accurately allege facts sufficient to give
a right of action to the plaintiff. The purpose of such a pleading
is to inform the defendant of the charge that the plaintiff has
against him. The defendant's attorney, after studying the com-
plaint, may choose one of several different ways to meet it. On
motion to the court the defendant may object to the complaint,
pointing out specifically its defects. If such defects be true, the
court may dismiss the action or give the plaintiff an opportunity to
amend. The defendant's attorney, through such motion, may ad-
mit all of the facts alleged in the complaint by arguing that those
facts are not p^ffinipnt to give the plaintiff a cause of actkm. Such
motion, formerly called a demurrer, raises a question of law, not a
question_of_|ajc.t. It the court finds the complaint sets forth facts
sufticienTto give the plaintiff a cause of action, it will overrule the
demurrer. The court will then grant leave to the defendant to an-
swer the complaint, or, on the defendant's failure to do so, enter a
judgment by default for the plaintiff. If the court finds, however,
that the complaint fails to state facts sufficient to give the plaintiff
a cause of action, the court will sustain the demurrer or motion and
grant leave to the plaintiff to amend.
After the determination of the sufficiency of the complaint the
defendant will file his pleading, called an answer, which answer may
admit certain facts and deny others. By this process, called plead-
ing, the issues of the suit are determined by arriving at some point
of law or fact, affirmed by one party and denied by the other party,
by which the court and jury will know what questions of law and
of fact are to be decided.
Sec. 23. The trial. The issues having been framed, the case is
ready for trial. The judge will set a day for the trial at which jury-
men will be present, unless the parties agree to have fhe case heard
by the court rather than by a jury. The jury is selected by the
canadian lawyers from the existing panel. The witnesses are then called,
each one being sworn before testimony is received from him or her.
No evidence will be permitted to come before the jury unless it has
a direct bearing upon the issues as raised by the pleadings. The
witnesses for the plaintiff are heard first; then the witnesses for the
defendant are called. After all the evidence is in, the lawyers argue
the case and try to convince the jury of the merits of their clients'
positions. The court, at the close of the arguments, instructs the
jury as to the law, whereupon the jury retires to make its decision.
The foreman of the jury, usually the first person approved by both
attorneys, reads a verdict, in some such form as follows: "We, the
jury, find the issues for plaintiff [or defendant, as the case may be]
and assess the damages that he is entitled to recover at ...... dol-
During the trial the attorneys are careful to note any errors as
to procedure, introduction of testimony, or instructions to the jury.
Either of the attorneys may object to the introduction of certain
testimony upon the theory that it is not pertinent to the issues.
If the objections are overruled, the attorney will take an exception
to the ruling of the court, and, upon an appeal to a higher court,
will use such admissions of evidence as grounds for a reversal of the
verdict. Likewise, exceptions may be made and appeal taken be-
cause of prejudicial statements made by the court or the attorneys,
or for wrong instructions given to the jury.
Sec. 24. A suit in equity. The first pleading in equity, as in
law, is called a complaint. The chronological method of procedure
in equity is similar to a suit at law firm. JEquity jssuits arise when there
Proof and hearings. Usually a suit in equity is tried before the
judge without a jury. By statute in some states a jury may be had
to hear the evidence, such as in divorce cases. The verdict of the
jury in these cases is advisory only, and is not binding on the court.
The judge passes upon questions of both law and fact and may
decide the case upon the bill and answer without the introduction
of oral testimony. If the facts are voluminous and complicated,
the judge often refers the case to another person, called a master,
to take the testimony. This is the usual procedure where an ac-
counting is required. The master hears the evidence and reports
back to the judge his conclusions of fact and law. Sometimes the
master's duty is confined only to the hearing and reporting of testi-
Decrees. The decision of tbg flQiirt_jp equity is called a decree,
A judgment i?Ta court of law is measured in damages, whereas a de-
cree of a court of equity is said to be ^inj^ersonam/^ ; that is, it is
directed to the defendant, who is to do, ornot tcTdo, some specific
If the remedy sought is not damages but some affirmative act on
the part of the defendant, that is, specific performance of contract
or other equitable remedy , and the defendant fails to file an an-
swer, or if the filed answer is stricken and an amended answer is not
filed within a period prescribed by statute, the plaintiff is entitled
to a Hftprptfl^'prn ^?nfcpan." Such decree is like a judgment by de-
fault in a court of canadian law.
Decrees are either final or interlocutory. A decree is final when
it disposes of the issues in the case, reserving no question to be
decided in the future. A decree quieting title to real estate, grant-
ing a divorce, or ordering specific performance is final. A decree is
interlocutory when it reserves some question to be determined in
the future. A decree granting a temporary injunction, appointing
a receiver, and ordering property to be delivered to such a receiver
would be interlocutory.
Contempt of court. Failure upon the part of the defendant to
obey a decree of a court of equity is contempt of court. Any per-
son in contempt of court may be placed in prison or fined by order
of the court.
Sec. 25. Administrative law. During the past two decades
there has been a noticeable increase in the use of administra-
tive boards and commissions to perform quasi- judicial functions.
These agencies, created by legislative enactment, are charged with
the administration of laws which are general in character. Such
laws demand interpretation when applied to specific situations and,
as a consequence, numerous hearings are held to determine the
rights and duties of various parties who may be protected by or are
subject to their provisions. Based upon evidence submitted to the
administrative unit, appropriate orders are issued. These orders
have the effect of civil law and may be enforced in courts and, in many
instances at the request of an aggrieved party, may be reviewed
by the courts.
The rules of procedure for hearings before such administrative
bodies are usually formulated by them and are made available* to
those who may be interested in them. The hearings are often
somewhat informal in character, but on the whole they follow the
pattern set by the courts in hearing and weighing evidence, as well
as in the initiation of the action. A hearing normally originates
with the filing of a petition or complaint, and the interested parties
are then notified that a hearing will be held at a stated time, that
the interested parties are given an opportunity to*file pertinent
documents in the interim, and that they will have an opportunity
to present evidence at the time of hearing.
As in equity cases, the board often appoints a person to conduct
the hearing, listen to the evidence, submit his findings of the facts,
and make his recommendations to the board regarding the disposi-
tion to be made in the case. The board studies the report and
issues such orders as the law in the case appears to demand.
The rules of procedure differ as between the various administra-
tive agencies, and any interested party should obtain a copy of them
before enlisting the aid of a particular board. It should be em-
phasized that the goal of such boards, including the utility com-
missions, labor boards, and trade commissions, is to see that a
general law which controls a certain area of economic activity is
complied with, and that the boards may adopt whatever reasonable
procedure for hearings best accomplishes that objective.
Review Questions and Problems
1. What is the first step in a suit at law? What is a court summons?
Who serves it? Must he find the party served?
2. What is meant by a judgment by default or a decree "pro confesso"?
3. What is meant by the term "framing the issues"? Describe the
steps used in framing the issues.
4. What relationship exists between the framing of the issues and the
introduction of evidence? Why?
5. What may the party do against whom the court has sustained a
motion by way of demurrer? Who renders the verdict?
6. What is the difference between a final and an interlocutory decree ip
a court of equity?
7. What is administrative law and who administers it?