456
The Green Bag
the other has been followed. In conse quence four per cent of the points decided annually by our courts of
cases involving construction of man dates of which our reports show so many. Wherever possible, the review ing court should be able to and should
review are points of appellate practice. In ten years, 1896-1906, our courts decided 2377 points of appellate prac
do its work completely. In the foregoing program I have
tice—-almost as many as the combined
said
points of Master and Servant and Muni cipal Corporations, or of Carriers, Con stitutional Law, Corporations, Negli gence and Sales added together. Indeed appellate procedure is by far the bulkiest single topic in our digests. This is
which presents many features demand
wholly unnecessary. Procedure on ap peal may be and should be as simple as procedure upon a motion. In aid of this proposition, two sub ordinate proposals may be suggested :
(1) So far as they merely reiterate objections already made and ruled upon, exceptions should be abolished; it should be enough that due objection was inter posed at the time the ruling in question was
made." (2) Upon any appeal, in any sort of
nothing
of
criminal
procedure,
ing special treatment, of the charge of the court, a subject to which forensic
subtlety, which once busied itself with the writ and later with the pleadings, now chiefly attaches itself, nor of dis
eovery.
Each of these is of great im
portance in procedural reform; but each would demand a separate paper, if treated adequately.
If some of the propositions in the latter portion appear radical, it should be observed that as to these, a practice act such as is proposed would not require that all of them be put in the form of fixed rules and imposed on bench and bar at one stroke; rather the courts
would be empowered to give effect
cause, the court should have full power to make whatever order the whole case
to them, as the practice could be de
and complete justice in accord with substantive law may require, without
of such power became expedient. More over, nothing has been suggested which has not been tried and found practicable in some common-law jurisdiction. Let us remember that not England merely, but Canada and Australia, have put
remand unless necessary.
a
new
trial
becomes
There should be no occasion for the
veloped by rules of court and as use
00 Judicature Act (1873), rule 49; Kansas Rev. Code Civ. Proc.. §574; Gilbert. Act in Relation
these principles, and others more far
to Courts, §l703.
reaching, into actual practice.
