USA > Texas > The bench and bar of Texas > Part 10
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IMPORTANT SUGGESTIONS OF JUDGE BONNER IN REGARD TO REFORMS IN THE JUDICIAL SYSTEM.
A PROPOSED AMENDMENT TO OUR STATUTE OF TRESPASS TO TRY TITLE.
[Suggestion Number One.]
One of the greatest problems now engrossing public attention, is to devise a more economical system for the administration of our State government ; not a parsimonious, " penny-wise, pound-foolish" system, but one which will accomplish the desired end on a sound and proper basis. This and a few succeeding papers are most respectfully intended to invite reflection and suggestions on the part of the members of the profession, to whom such questions more particularly pertain, to some needed reforms in our judicial department, which, it is believed, will greatly lessen the delay and expense of our courts. This reflection and in-
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vestigation are the more important now, in view of the approaching session of our Legislature, at which it is proposed to revise our whole system of laws, both civil and criminal. This work should be done, if possible, after such careful thought and deliberation, in consideration of the mischief to be remedied and the object to be attained, as will insure a system which will avoid that great evil of modern legislation - frequent changes of existing laws, by which we fly by sad experience to greater ills, and which has given rise to the maxim, that the world is governed too much.
It is, however, by no means intended to encroach upon the work of the able and learned commission appointed to revise our laws, nor to indicate anything like a general sys- tem, but simply, by a few illustrations of supposed defects, to call attention to the necessity and importance of the labor which has been intrusted to them, and thus give assurance of our earnest co-operation in the great work of reform. Neither infallibility nor entire originality is claimed for the suggestions which may be made, but, as before stated, the object desired is to awaken thought and investigation.
The first question to which attention is invited is the importance of an amendment to our statute of trespass to try title. With the introduction of the common law there was an express provision that thereby the common-law system of pleading was not adopted. Our act of trespass to try title, by which all the fictitious proceedings in the old action of ejectment were abolished, and by which the controversy that had for so long been protracted between those persistent litigants, John Doe and Rich- ard Roe, was finally terminated, was a much needed reform upon the old common law. But so much of the act as provided that the defendant shall not be required to put in any other plea than that of " not guilty " is contrary to the general policy, if not thereby impliedly repealed, inaugurated by our subsequent legislation and judicial construction, which seek to make our system one of special pleading. As stated by Mr. Justice Wheeler, in Mimms v.
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Mitchell, in the very first volume of our reports: " But, with us, neither the distinctions of the forms of actions nor the general issues exist ; but our pleadings really are, or intended to be, what the English pleadings are defined to be - the statement in a legal and logical manner of the facts which constitute the plaintiff's cause of action, or the defendant's ground of defense, or the written statement of those facts intended to be relied on as the support of the party in evidence."
This statement is necessary to the ends of justice, so that the parties may be advised of the true issues, and come prepared to meet them with the testimony. If necessary in ordinary cases, how much more so in that class of litiga- tion which involves the title and possession of the lands and homesteads of the country. But, under the plea of "not guilty," the defendant can attack his assailant, as from behind a masked battery, without previous warning. In this way important rights are sometimes lost under issues raised for the first time on the introduction of testimony, which, had they been presented in the pleadings, could have been successfully met and resisted. Like objection arises to the pleadings of the plaintiff, when, as is usually the case, it is but a general statement of the legal owner- ship to the land in controversy.
It is submitted that the statute should be so amended as to require both parties to deraign in their pleadings, at at least from a common source in proper cases, their respective titles. This would be consistent with the true and original purpose of all good pleading, and which our system, with perhaps this single exception, was designed to accomplish; and would frequently enable the court to decide on demurrer the legal effect and superiority of the respective chains of title, which now has to be done in the charge to the jury after all the delay and expense of a trial upon the facts. This change, it is believed, in its practical effect, would not be pleading the evidence in the case, more than is now required in setting out the particularity of the claim declared upon in a suit of debt.
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THE NECESSITY OF AN APPEARANCE TERM TO DETERMINE THE ISSUES OF LAW.
[Suggestion Number Two.]
That government is the best which affords to its citizens the greatest protection to the rights of person and property, and the most economical and speedy legal remedy for the violation of those rights. A nation's principal wealth con- sists in that of the individuals who, in the aggregate, com- pose the nation, and the great source of this wealth is the industrial resources of the country, that which produces and which can be utilized for both publie and individual gain. In calculating the expenses of our courts we should consider, not only the positive loss in the actual amount of indebtedness thereby created, and which has to be paid to jurors, witnesses, etc., but also the negative loss to this producing interest by the withdrawal of labor from the sev- eral industrial pursuits.
A proper consideration of the subject in all its relations, and particularly in the loss to the agricultural portion of the community, from which our jurors and witnesses princi- pally come, will show that the indirect expenses of our courts perhaps exceed the direct expenses. A penny un- necessarily spent, when it should be made, is two pence lost.
To ascertain, then, that system which will best enable us to properly carry on the courts with the least attendance of jurors and witnesses deserves the profound consideration of our wisest statesmen. It is confidently believed that great reforms can be made, by which the expenses of our courts can be reduced at least one-half what they now are under our present system. One of these, it is submitted, is to have an appearance term of our District Courts for the purpose of determining the issues of law, at which neither jurors nor witnesses are required to be in attendance, and no judg- ments to be rendered except those taken by default and consent. Rule 24, for the District Courts, recently adopted by the Supreme Court, went as far in this direction as ex-
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isting statutes permitted, and has already been attended with good results, though it falls far short of much that could be accomplished under proper legislation. It is not intended that there shall be a separate appearance term, but that the first succeeding court, after citation served, shall be the appearance term for all the cases returnable thereat. Practically, it will cause no delay to litigants, for under our present practice a contested case is very rarely - tried at the term to which the same is brought.
If the judge presiding needs the assistance of learned counsel and a reference to authority, at any stage in the progress of a trial, it is when he has under consideration the issues of law upon demurrer. In the courts of last re- sort these very questions are determined upon full argument, and printed briefs from eminent counsel, with access to ex- tensive and selected libraries, after full time for research and deliberation, and upon consultation with learned and experienced brother judges. But in the nisi prius courts, they have to be decided by a single judge, and at compara- tively great disadvantage under the most favorable circun- stances. The issues are not narrowed down and presented in brief, pointed proportions, as in the courts of last resort, but are first presented in the pleadings, generally in a vol- uminous, crude mass, from which the true propositions of law which underlie the case have to be evolved. This has to be done in the midst of the hurry and confusion of the court, per- haps not upon full or satisfactory argument, often in coun- ties where full sets of our own State' Reports even are not accessible, and when impatient jurors, witnesses, litigants, and sometimes impatient lawyers, when not engaged in the particular case on trial, are anxiously in attendance. If the judge presiding, in the effort to discharge his sworn duty, listens patiently to argument, and endeavors, by a proper determination of the legal questions in the first instance, to avoid an error which, if fatal here, will be fatal to all sub- sequent proceedings, he is called a " slow coach," and de- nounced for permitting the lawyers to indulge in argument, and is adjudged to be unqualified for his position. If, how- ever, instead of fearlessly endeavoring to discharge his duty
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he seeks popularity by a false show of profound learning, which enables him to decide, erroneously, difficult questions upon the moment and without argument, he is in fact not only unworthy of his position but makes waste by making haste, in having the cases remanded to again undergo all the delay, expense and uncertainty of another trial. Perhaps unreflecting parties would not so frequently denounce the court and lawyers for patient investigation and seemingly unnecessary argument were their own cases on trial. Would it not seem arbitrary indeed to them, in the trial of a case in which their lives or homesteads were involved, should the court, in the effort to make the very equivocal reputation of being a fast judge, order their attorneys to set down because the time of the court was too precious to do one of the principal things for which the tribunal was constituted - to hear argument, and thus summarily decide, perhaps erron- eously against them? From this standpoint the true mis- sion of the court and lawyers would be viewed in entirely a different light. As said by that great equity lawyer, Lord Eldon, in Ex parte Pease, 1 Rose, 237, " I know a great deal of time is consumed in hearing argument, but a great deal of justice is the result."
A remedy for the seeming delay in our courts and which, perhaps, in too many cases, is real, and which would save the now necessary expense of attendant jurors and wit- nesses, and prevent the hurry and consequent liability to err in the determination of the issues of law, and by which a happy medium between unnecessary delay and undue haste can be attained, is to have the appearance term above recommended. This docket will be called after all the cases in which jurors and witnesses are required have been de- cided, and these parties have returned home, and when the judge, with none necessarily in attendance except the law- yers, can, after full argument, and when the desired amendments have been filed, finally settle the true issues of law in the case. This being done on more mature delibera- tion, there will be less liability to err and to have the judg- ment reversed and the case remanded for another trial. In this way many issues before supposed to be material,
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and to sustain which a cloud of witnesses, under our present system, would be in attendance, will, at the first term, be eliminated from the record, and occasionally a case will be dismissed entirely upon general demurrer, and thus save the attendance of both witnesses and jurors. If, at the same term, the court be required to ascertain the jury cases, and set the call of the jury trial docket for a day certain at the next term, then the parties can appear with such wit- nesses only as are necessary to sustain the issues remaining in the case, and the only preliminary question to the trial of all cases upon the issues of fact, will be simply that of con- tinuance; no further amendments being permitted, except in proper cases under affidavit, in analogy to the plea of puis darien continuance at common law.
M. H. BONNER.
DEPOSITIONS OF ALL WITNESSES IN CIVIL CASES.
[Suggestion Number Three.]
Having now decided the issues of law, and having to this point saved the expense of the attendance of both witnesses and jurors, while delayed in that most important part of the trial, and the expense of the latter in all cases unless demanded, and having set down, for a particular day in the term, the call of the jury trial docket, so that jurors need not attend before that time, we will next inquire what fur- ther expense can be saved in the attendance of witnesses. Before doing so, however, it is proper to pay a deserved tribute to that clause in the Constitution of 1876, which provided that no jury should be had in any civil case unless demanded by one of the parties. Under our former laws and practice, the reverse of this was the rule, and a jury was necessary in any contested case, unless expressly waived by both parties, thus requiring jurors to be in at- tendance throughout the whole term. In the practical operation of the new law in one judicial district, of which I can speak advisedly, and I presume it is the same in others, juries have not been demanded in more than one- third of the trial cases ; and in one instance a jury was not
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demanded during the entire term. The single item of the five dollar jury fee, which formerly would have been taxed in the bill of costs, in the aggregate will amount to a large sum thus saved to litigants. This growing tendency to dis- pense with juries, with the reduction of the grand jury to twelve members, has very greatly lessened the expense of this service, and with an appearance term, as before recom- mended, it is believed that this part of the machinery of the courts, which had grown to be such a burden upon the people, both in taxation and unnecessary attendance, will be carried on at comparatively nominal expense. A much greater saving can be realized by taking the depositions of all witnesses, with perhaps a few exceptions, under proper rules and regulations in civil cases. The most burdensome and expensive part of the whole court, to both litigants and individual members of the community in the great majority of the cases, is occasioned by the attendance of the wit- nesses. This is particularly so to the witnesses themselves in cases where the parties litigate in forma pauperis.
Under existing laws the deposition of witnesses gener- ally, resident within the county, to a single point even, can not be taken unless by consent of both parties. The sys- tem by deposition has long been the practice in courts of chancery, and thereby great delay and costs have been avoided, and our procedure is one of mixed law and chan- cery. Even under our present system the depositions of females, of aged, sick and afflicted persons, and of those who are non-residents of the State or county, can be taken, and have usually proven satisfactory, so far as my experi- ence and observation have extended. As an illustration, if .proper and practicable to take the deposition of a witness who resides without the county, why is it not equally proper and practicable to take the deposition of a witness who re- sides within the county, perhaps near the county line, and within a short distance of his neighbor whose deposition is on file? Beside the very great expense, direct and indirect, which now burdens the country, every court, by the mileage and per diem fees to witnesses, and by the withdrawal of their labor and supervision from their several industrial
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avocations, there would be other very marked advantages resulting from the proposed change. Cases would be more speedily brought to trial, and that great reproach to our present judicial procedure, frequent continuance for want of the testimony of absent witnesses, would be re- moved, as, by the proper use of diligence, their depositions, in most instances, would already be on file; the testimony , of the witnesses would be perpetuated in case of death or other casualty or defective memory ; and that most vexa- tious source of annoyance to both court and attorneys, a wrangle over statements of fact, would be obviated.
There is this, and perhaps other objections to the system, that in some instances it would be more satisfactory that the the witness should be personally on the stand and subjected to examination in presence of the court and jury. This could be obviated to some extent by requiring the witnesses to attend at some suitable place, - as a general rule at the court-house, - for the purpose of having the deposition taken, and giving to both parties, in person or by attorney, the privilege of being present, and propounding, either in writing or orally, any pertinent questions they may desire. In some cases, on affidavit of the necessity therefor, the personal attendance of the witnesses may be enforced under such rules and regulations as may be deemed proper. The tendency of modern legislation and of the decision of our courts of the very highest authority, is to relax the old rules of evidence. No system which we can devise will be per- fect, but it is believed tlfat the advantages of the plan suggested, of taking the depositions of all witnesses gen- erally in civil cases, under proper safeguards, even with the objections to it, will so far outweigh the disadvantages of the old system as to recommend it to the very favorable consideration of the profession.
MORE STRINGENT LAWS AND PRACTICE DEMANDED ON THE SUBJECT OF CONTINUANCES.
[Suggestion Number Four.]
Having shown how that stage in the progress of the trial in civil cases at which the parties will be called on to an-
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nounce themselves ready on the issues of fact or apply for a continuance can be reached at comparatively little, if any, expense of either jurors or witnesses, and having shown that applications for continuances on account of the want of testimony, if due diligence is used to take depositions, will be of rare occurrence, we will next see how delay and ex- pense can be saved in criminal cases.
If, as required in regard to the issues of law at the appearance term for civil cases, the defendants in all criminal cases be required to file at the first court after arrest all exceptions to indictments and motions to quash, or else they shall be deemed waived, and the court be required to act upon them at the same term, or as soon thereafter as the other business will permit, then one very prolific source of delay and expense will be removed. How often has it occurred, within the observation of every experienced judge and attorney of long practice, that, after a case had been called and continued for a number of times, fre- quently until the offense was barred by limitation, after the expenses of jail fees, attendance of jurors and witnesses had accrued, after all the witnesses had at last been found and were in attendance, many of them possibly from distant counties, and the jury ready to be impaneled, exceptions to the indictment have for the first time been filed, presented and sustained, and the defendant discharged. How easily could all this have been obviated, and the defendant brought to justice, by requiring these to have been presented and decided at the first term.
This devolves upon the defendant, as the State can not force the issues of law until they are first presented by the defendant.
But, admitting the indictment to be good, the facility with which continuances can now be obtained, is a sad com- mentary upon our laws and practice.
This is attributable, doubtless, in some instances, to the leniency of the judge presiding, but in most cases, as the requirements of the law are complied with, he is compelled to grant the continuance ; else, after the delay and expense of a trial, the case will be reversed and remanded. Thus,
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frequently important cases are worn out and virtually lost ·before they are brought to trial. Continuance after con- tinuance is had ; witnesses die or remove from the county or State ; their interest becomes adverse, or, from natural or mercenary causes, important facts fade from the memory or can not be obtained. This, as said by Mr. Justice Wheeler in another connection, is of so frequent occurrence " as to seem to justify the reproach of the law, that it does not afford any adequate protection for the sacred rights of personal security," and, we might add, of property.
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But to the individual loss of the immediate parties liti- gant should be added the expenses of the witnesses, jurors, jail fees, and, in most cases on the criminal docket, and in many cases on the civil docket, the loss in fees and expenses to the officers of the court.
In all capital cases we are by law required to have special venires of from thirty-six to sixty men. As these are not en- titled to pay, except the particular twelve who are finally impaneled, and, as in State cases there is seldom any cost paid to witnesses, and frequently none to the officers of the court, these frequent continuances, with their consequent evils, have become burdens too grievous to be borne. As grievous burdens were imposed in olden times, by the Scribes, who were then called lawyers, but who, I am proud to say, did not represent that respectable and influ- ential class so known in latter times, let it be the important work of those who are now called lawyers to remove them.
Many witnesses attend from day to day and from term to term from respect to the process of the court and the pow- ers that be, while many others disregard and seek to evade this process, and thus cause the necessity of frequent continuances. I call to mind one instannce, of an aged, infirm witness, who was under attachment in an important capital case simply because he resided without the county. In obedience to that process, he traveled a distance of two hundred and fifty miles, through the inclement snows of January, 1877, when the case was continued for the testimony of another witness who resided within the county
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and but a few miles distant, who failed to attend because he was simply under the process of subpoena. An attach- ment was ordered for the absent witness, which, under our statute, could not previously issue, because he resided within the county. This compelled his attendance at the next term, when the case was again continued for a witness who was under subpoena only, and thus was the case con- tinued by first one and then the other party.
Again, under the terms of our statute, as construed by the Supreme Court in Dinkens v. The State, 42 Texas, 252, a defendant who is committed to jail to answer at the next term of the District Court a grave charge, perhaps without bail, after a full and patient investigation for days before an examining court, although fully aware of the specific charge against him, and the names and residence of all the witnesses, real or feigned, in his behalf, is not required or even permitted to use any diligence to prepare for trial until the bill of indictment has actually been found and re- turned into open court ; and, under the statute, as con- strued in Shackelford v. The State, 43 Texas, 140, the judge presiding has no discretion, over the objections of the de- fendant, to postpone the trial for a reasonable time, until the attendance of the witnesses can be obtained. The
same restrictions and prohibited use of diligence apply also to the State. Hence, instead of encouraging trials and the administration of speedy justice, our present laws and prac- tice virtually forbid it, as a continuance in a State case at the first term is obtained almost as a matter of right.
It is respectfully submitted. that there is, on principle, no good reason why the first application for a continuance, in both State and civil cases, should not contain all the substantial requisites of the second or other subsequent application ; that the law should be so amended as to per- mit and require both parties, where the defendant has been bound over to answer a charge at the succeeding term of the District Court, to issue with due diligence, before in- dictment found, the necessary process to compel the atten- dance of witnesses; that witnesses, in all felony cases at least, should, in the first instance, be placed under bond, as
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