The “Theory of the Case" Doctrine and Chaotic Condition of Our Pleading T a time when there is a widespread agitation for the disregard of technical ities of pleading and judgment on the merits, it is interesting to find the technical point of view presented with such acute logic as by Edward D'Arcy in his articles on “ ‘Theory of
the Case'—Wrecker of Law" in the Central Law journal. “Perhaps one of the most serious troubles with the law to-day, as has been pointed out in a previous article of this series," writes Mr. D‘Arcy, “is the failure to understand the fundamental difference between the common law, or mandatory record, or ‘record proper,‘ and the bill of exceptions or ‘statutory record.‘ The difference involved goes to the root of the law, and yet owing to fancied distinc tions between ‘substantive’ and ‘adjective’ law, the former being treated as all impor tant, and the latter as merely subsidiary, our students are being impressed with the idea that the study of adjective law deserves but a small portion of their time in the school, and that its principles can be picked up in practice, without instruction. “The result is that men trained thus get into the profession and on the bench im bued with the idea that adjective law being technical (which it is), there must be found some way of eliminating the ‘technicality.’ They desire, laudably enough, to ‘get at the merits,’ but being untrained to see that the ‘merits’ (an be known to the court only through the pleadings and other parts of the record prescribed by law, they become impatient of the restraint imposed, depart from the state's record, allow the parties to raise new and unpleaded issues, and in doing so actually believe they are expediting the cause on its ‘merits.’ “And when the practitioner objects to hav ing his client's rights trampled upon in this manner, he incurs the animadversion of the trial court, often in the presence of the jury. "ultitudo imperitorum perdit curiam. “Now, the position taken in this series of articles is that ‘form’ is just as necessary in the law, if its symmetry is to be preserved, and justice is to remain certain, as it is in
engineering, chemistry or medicine, or as it is in baseball, or tennis, for that matter. If you want to make an eflective stroke in golf, or an efiective punch in the prize ring, you must do it according to form. All of which simply means that there are principles underlying all human effort, which, if ob served, make the eflort effective; if not observed, make it abortive or ineflicient. . . . "There is a philosophy underlying the mandatory record, or record proper, and a philosophy underlying the statutory record, or bill of exceptions. We refer to the rules concerning error appearing in these two records, and the time and manner of attacking
it. Error, in matters of substance,- appearing on the face of the mandatory record, may be taken advantage of by the general de murrer, and its correlatives, the motion in arrest, motion for judgment non obrtantc veredicto, the order of repleader, objections upon collateral attack, and when questions of res adjudicate are raised, by insisting that the necessary facts for the comni judice pro ceeding do not appear. All these objections to substantial defects in the mandatory record, while made at difi'erent stages of the
proceeding, are directed against error of the same nature, appearing in the same record; for instance, that the complaint does not state facts constituting a muse of action. . . . Underlying all these various modes of attacking a proceeding which is fatally de fective, is the principle expressed in the maxim, De non apparentibus, at de non exis tentibus, eadem est ratio: what is not made
to appear is to be treated as though it does not exist. This maxim is the great maxim
of procedure-a maxim, unfortunately, which is not taught to our students, and not always enforced from the bench.
It is, as W. T.
Hughes expresses it, a ‘constitutional impli cation'—that is to say, a constitutional government must necessarily respect it. Legislatures may pass laws ‘abolishing’ pleadings, but the courts govern and pro tect, and must rule. Legislatures may pass statutes of jeofails, providing that when a verdict shall have been rendered, the judg ment shall not be afiected or impaired ‘for
