Dietzman, Richard Priest

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University of Kentucky

Kentucky Law JournalVolume 22 | Issue 1 Article 61933The Practice Act of 1930Richard Priest DietzmanKentucky Court of AppealsFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Courts CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journalby an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationDietzman, Richard Priest (1933) "The Practice Act of 1930," Kentucky Law Journal: Vol. 22 : Iss. 1 , Article 6.Available at: https://uknowledge.uky.edu/klj/vol22/iss1/6KENTUCKYSTATE BAR ASSOCIATION SECTIONTHE PRACTICE ACT OF 1930*By JUDGE RIcaaED PaiET DIETZMAN**In the decade prior to the year 1928, the cases in the Frank-lin Circuit Court involving public questions, the construction ofrevenue laws, the constitutionality of statutes affecting the pub-lic service, the interpretation of laws imposing duties on publicofficers had very appreciably increased in number. Most ofthese cases required a prompt determination, for public interestswere involved and could illy brook delay. But the FranklinCircuit Court was not a court of continuous session nor couldit under the provisions of Section 138 of our Constitution becreated into a separate judicial district as the Court of Appealsin the case of Scott v. Mcreary, 148 Ky. 791, 147 S. W. 903,expressly held. Some measure of relief to expedite the publicbusiness was imperatively needed and so the Act of 1928, Chap-ter 28 of the Acts of that year, was passed. In substance, it pro-vided that all circuit courts sitting in any county containing acity of the second or third class, not then courts of continuoussession, should so far as the hearing of motions, the making ofinterlocutory orders, and the trial of cases, except where a jurytrial was called for by the parties or ordered by the court beopen at all times and be governed by the rules of practice appli-cable to courts of continuous session, altlhough they were notactually courts of continuous session. At least this was the con-struction placed on the Act by the case of Clapp v. Sandidge,230 Ky. 594, 20 S. W. (2d) 449. It will be noted that the Actapplied not only to counties containing a city of the third class,as Franklin County then was, but also to counties containing acity of the second class and not having a court of continuous ses-sion. Such counties were McCracken and Boyd, and it is be-*An address delivered before the Kentucky State Dar Associationat its annual meeting in Frankfort, July, 1933. A motion that it bepublished in the Kentucky Law Journal was passed unanimously.**Justice, Court of Appeals of Kentucky.Tim PRACTICE ACT OF 1930lieved the Act was framed as it was to meet the situation of thegrowing amount of business in these two counties, especiallyBoyd, which has long desired a court of continuous session of itsown. For two years, the Act of 1928 was tried out. Its efficacyin dispatching business, especially cases involving public ques-tions was marked. So at the November meeting of the JudicialCouncil in 1929, Judge Prewitt, one of the most active, tirelessand efficient members of that body, proposed to extend the prin-ciple of the 1928 Act to all the circuit courts of the State notcourts of continuous session. His proposal receiving the sanc-tion of the Judicial Council, he drafted an act which was pre-sented to the 1930 Session of the Legislature and which becameChapter 17 of the Acts of that Session. It is now embraced inSections 964b-1 to 964b-3 of the 1933 Supplement to Baldwin's1930 edition of the Statutes. They read:Section 964b-1: "All circuit courts of this Commonwealth,other than those of continuous session, and the judge thereof,may make or direct in vacation or term time at his chambers, orat the circuit clerk's office or at any other place in any countyin said district, any order, rule, judgment or decree in any pro-ceeding whether at law or in equity or on the criminal docketupon reasonable notice to the parties, except where trial by juryis called for or ordered by the parties."Section 964b-2: "All regular and special terms of court inany of such courts shall be held as now provided by law or asmay hereafter be provided by law."Section 964b-3: "This act shall in no wise affect existinglaws or those which may hereafter be enacted relative to circuitcourts of continuous session and shall not take effect until afterJanuary 1, 1931."It will be noted that though the principle back of the 1928Aet was carried into the 1930 Act, the latter differs very muchin wording from the former one.The 1930 Act was first before the Court of Appeals in thevase of City of Owensboro v. Nolan, 242 Ky. 342, 46 S. W. (2d)490. The only question there raised under the Act was concern-ing the power of the circuit court to enter judgment in an equit-able action during vacation on notice to the parties. Withoutdiscussion, the appellate court upheld such power under the ex-press wording of the act.KENTuCKy LAw JoUEALThe Act was next before the court in the case of Center'sGuardian v. Center, 244 Ky. 502, 51 S. W. (2d) 460. It wasthere held that a circuit court or judge thereof has control overany order, rule, judgment or decree entered in vacation pur-suant to the authority so to dd granted by Section 964b-1 of theStatutes (1933 Supplement) not only during the vacation, butuntil the expiration of the succeeding term of court. This rul-ing has been much criticised by students of the 1930 Act. Theyclaim that in large measure it nullifies tlhe purposes of the Actto give expedition to litigation; for if a judgment rendered invacation be subject to the control of the court or judge whorendered it not only during vacation but until the close of thesucceeding term of court, it has no such finality as that the par-ties thereto can safely act in reliance upon it. They might justas well have waited for the regular term to secure their judg-ment so far as finality is concerned. On the other hand, it isargued that a judgment secured in vacation is just as final forpurposes of appeal as well as all other purposes as one securedduring term time. Such judgments though subject to control ofthe court can be enforced, appealed from and acted upon. In-deed, they are often acted upon despite the possibility of thecourt setting them aside or modifying them during the term atwhich they are rendered. At all events, the Center case is yetthe law, although possibly the theory upon wich it is rested isincompatible with what the Court of Appeals said in the nextand up to the writing of this paper the last case involving the1930 Act. That case is Estes v. Woodford, 246 Ky. 485, 55 S.W. (2d) 396. The substance of that case and the construction itput on the 1930 Act is succinctly stated in one short sentencenear the close of the opinion. It is:"In effect, the court or judge sitting in any case as author-ized by Section 964b-1 is equivalent to a special term within themeaning of Section 971-13" (of the Statutes).It will be recalled that Section 971-13 of the Statutes re-ferred to is the one providing for special terms of court ao wehave always known such terms.If action under the 1930 Act is equivalent to action duringa special term of the court within the meaning of Section 971-13of the Statutes, can the ruling of the Center case longer stand?A judgment entered during a special term can be controlled byTHE PRAcuicE ACT OF 1930the court which rendered it only during such special term. Whyshould a different rule prevail under the 1930 Act if action pur-suant to it is equivalent to action during a special term?Applying the theory of a special term to the 1930 Act, thecourt in the Estes case logically held that the"Act did not abro-gate, alter, change, modify, or supplant Sections 367a-1 to367a-11, inclusive of the Civil Code, or any section of the Stat-utes controlling a circuit court in regular or special term.Accordingly, if the action be one at law, it does not stand fortrial under Section 964b-1 until summons shall have been servedfor 10 days if directed to the county or 20 days if directed toanother county. See Section 367a-2 of the Civil Code. If thedefendant be constructively summoned and does not answer, theaction does not stand for trial until 60 days after the warningorder is entered. See Section 367a-6 of the Civil Code. If theaction be an equitable one, it will stand for trial at any time atthe convenience of the judge or court after 30 days from thetime when the issues have been or should have been completedunder the provisions of the Code regulating that subject. Inter-locutory orders may be entered by the court or judge sitting invacation under Sections 367a-7 of the Civil Code and 964b-1 ofthe Statutes.If at the time notice is served requesting a trial in vacationunder Section 964b-1 of the Statutes, the issues have not beenformed but should have been under the provisions of the Codeapplicable to the forming of issues, all of the Code provisionsapplicable to a court in regular or special session control thatmatter when the case comes on to be heard before the judge orcourt in vacation.Further, the provisions of the Code relating to the separa-tion of law and facts, the filing of the motion for a new trial, thegranting or refusing such motion for a new trial, the filing of thebill of exceptions and all related matters apply and control theparties and the court. In the application of the provisions ofSection 340, 341, 342 and 344 of the Civil Code relating to newtrials and Sections 517 to 524, inclusive, of that Code, relatingto proceedings to reverse, vacate, or modify judgments, theaction of the judge in entering a judgment in vacation underthis Section 964b-1 of the Statutes is to be regarded in the samelight as a judgment entered at a regular or special term of court.KENTUCKY L.v JounNALThus we see that if we liken the sitting of a judge during va-cation pursuant to the authority granted by Section 964b-1 ofthe Statutes to a special term as authorized by Section 971-13of the Statutes, and apply to the situation the same Code provi-sions as to time of trial, formation of issues, method and time offiling motions for new trial, and of bills of exceptions and ofproceedings to vacate, modify or reverse judgments as we wouldto special terms, all procedural difficulties under the 1930 Actdisappear and its beneficient effect in the expediting of litiga-tion, especially in equitable causes, the settlement of estates andsales of realty, will clearly appear.It must not be overlooked that the Estes case expressly heldthat this 1930 Act did not in any way affect Section 378 of theStatutes or Section 390 of the Civil Code. These sections arethe ones requiring the orders and judgments of the court to beentered on the order book of the court and signed by the judge.Until they are so entered and signed, they are, under familiarlaw, ineffective.The court in this Estes case significantly and expressly leftopen the question whether under Section 964b-1 of the Statutesthe trial of a case can be held in a county other than the one inwhich it is pending over the protest of any of the parties thereto.Of course, if sui juris, the parties can waive any or all require-ments of the Code as to time of trial, formation of issues, or placeof trial. Being a member of the tribunal before which the ques-tion thus left open by the Estes case may yet come, I express noopinion upon it at this time. I simply call attention to this im-portant quesion.It is obvious from this resume of the E stes case which I be-lieve disposes of most of the questions that will arise under the1930 Practice Act, that to put the Act into effective operation,one that will 4void confusion and afford certainty to the bar, thevarious circuit courts should adopt rules looking to that end.To illustrate, Judge Prewitt informs me that he has set asideSaturday of each week for work under Section 964b-1 of theStatutes. As he has four counties in his district, he visits eachcounty once a month on Saturday and disposes of such mattersas can be dispatched under this 1930 Act. As a result, he tellsme that almost all the equitable business of his courts is trans-acted during vacation and when the regular terms come aroumd,TnE PRACTICE ACT OF 1930his undivided attention can be given to the actions at law com-ing up at such terms. As administered by Judge Prewitt, the1930 Act has given complete satisfaction to the bar of hiseircuit. In other circuits, such as the very large one of JudgeFulton, a different arrangement would probably have to be madebut by the adoption of rules adapted to the particular andpeculiar circumstances existing in each circuit, the 1930 Act canbe made very effective in the prompt and expeditious dispatch ofbusiness. Of course, as held in Don'ran v. Wheeler, 244 Ky. 628,51 S. W. (2d) 941, and repeated in the Estes case, no rule canbe adopted which nullifies or conflicts with any of the provisionsof the Code or Statutes.It may not be amiss in this connection to refer to anotherAct of the 1930 Legislature,-Chapter 19 of the Acts of that ses-sion-which authorizes the approval, signing and filing of a billof exceptions in vacation time. So far as I have been able toobserve from the records which have passed through my handssince the passage of this Act, but few lawyers or judges havetaken advantage of it. A wise use of the Act by the bench andbar will expedite very much the appeal of cases carried to theCourt of Appeals. Between it and the 1930 Practice Act, thereshould be afforded to the critic of the administration of justicebut little excuse to complain of delay in trial or in time of get-ting a case from the circuit court to the Court of Appeals.In an address before this body at its session held in 1927,Judge S. S. Willis, speaking on the subject of "Improving Prac-tice and Procedure in Kentucky," proposed the question: "Whatis the aim of substantive law which procedure is designed to real-ize?" In response to the question, he stated that two theorieswere advanced in answer to it. One is that courts exist that con-troversies may be speedily ended and the other that right andjustice may prevail. He pointed out how one school of thoughtteaches the doctrine that the vital thing is the prompt settlementof disputes, the policy being to accomplish the end of contro-versy in the interest of peace. The other school, b.e said, in theinterests of peace with justice, stands on the principle thatnothing is ever really settled until it is settled right.Judge 'Willis in that address laid down the postulate thatany practice or procedure that looks to mere haste, disregardingthe justice of the result, is utterly unsound and intolerable.KENTUC LAW JOunNALThere can be no quarrel with, this proposition. But any pro-cedure that eliminates unnecessary delay and expedites the dis-position of causes while at the same time giving to the parties anample and adequate hearing and to their counsel and the benchfull opportunity for research and reflection should and,, indeed,in this age when our courts and profession as never before aresubject to the searching criticism of the laity, must be welcomed.Of course any innovation is received with reluctance for to upsetthe settled practice of men is not an easy task to accomplish. Abar grown accustomed to a settled line of procedure looksaskance at any change no matter how good it -may appear theo.retically. But a new orientation has taken place in the profes-sion in recent years. It is valiently striving to bring its pro-cedure and practice into rapprochement with the demands ofthe time. One of these is to do away with the laws' delays. Itis believed that with full respect to the ideal of orderly hearingand reflective judgment, the two Acts of 1930, the Practice Actand the Bill of Exceptions Act, will if administered in a co-operative spirit and taken full advantage of in that spirit,accomplish much to effect an expeditious, speedy, and at thesame time, just disposition of disputes.

The Practice Act of 1930

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The Practice Act of 1930

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