AFTERNOON SESSION.
THE CIVIL CODE.
Pursuant to order heretofore adopted, the Senlate proceeded to the consideration of the civi code bill [S. 271], concerning procedure in civil cases, the question being on the amendment pending at the adjournment last evening.
Mr. COMSTOCK--The purpose of the amendment is to obviate the necessity of dismissing the suit by settling the question as to whether the parties are in Court or not.
The amendment was agreed to.
Mr. MENZIES offered an amendment embracing new matter to follow Section 74 of the code, page 71, prepared by the President of the State Bar Association, and by some inadvertance not incorporated in the bill. The intention is to make affidavits a part of the record for the purposes of appeal, etc. It would cut out a good deal of Judge-made law, etc.
Mr. LANGDON opposed the amendment, regarding it as proposing only a matter of convenience.
The amendment was rejected.
Mr. LANGDON offered an amendment that the execution plaintiff may designate the paper in which notice shall be given.
Mr. HEFRON considered the present law sufficient on that subject. It leaves the discretion where it ought to be--with the Sheriff.
Mr. CHAPMAN thought the matter ought to rest with the parties to the suit.
Mr. FOSTER was of opinion the Sheriff was the proper party to say where the notices ought to be published.
Mr. GRAHAM also opposed the amendment. The effect of the amendment would be bad. The execution plaintiff maybe the friend of a paper that has but a small circulation, and it would be his prerogative to say that the notice shall be printed in such a paper which can not give the notice other papers of larger circulation could give.
Mr. VIEHE said the Sheriff was only responsible for his errors.
Mr. LANGDON was in favor of the people, and of the people having the largest liberty to contract as they please.
Mr. BUNDY regarded the Sheriff as being responsible for such a class of advertisements, and to the Sheriff this matter ought to be left. The amendment would lead to no good results, and he hoped it would not prevail.
Mr. KRAMER was decidedly in favor of the amendment. In his experience, in nine cases out of ten the execution plaintiff pays the advertising fee, and it is right and proper that that party should control the advertising of Sheriff sales.
Mr. BROWN opposed the amendment. It will incumber legal proceedings with a routine that will prove of no benefit.
Mr. SPANN understood the execution defendant usually pays the bill, and he is the proper party to control this matter. He moved to insert "defendant" in lieu of "plaintiff."
Mr. FOSTER opposed the amendment to the amendment. Many times the execution defendant knows nothing of the publication until after it is made, and sometimes long after.
Mr. TRAYLOR opposed both amendments. If it is made the duty of the Sheriff to ask another where the notice shall be published that officer may have to go twenty miles to get consent.
The amendment to the amendment was rejected by yeas 11, nays 30, and the amendment was also rejected by yeas 20, nays 21.
Mr. COMSTOCK moved to amend Section 357 by requiring corporations to answer interogatories as natural persons through such officer the Court may direct.
Mr. LANGDON resisted the adoption of the amendment, the remedy under existing law being preferable.
Mr. COMSTOCK did not understand the correctness of the objections urged against his amendment.
The amendment was agreed to by yeas, 24; nays, 15.
On motion by Mr. GRUBBS, Section 35 was amended by adding a provision for service of process on persons of unsound mind.
On motion by Mr. SPANN, Section 374 wa amended where it refers to actions for recovery of personal property.
Mr. COMSTOCK offered a new Section to follow 802, authorizing the Court to require copies to be filed with complaints, answers or replies.
Mr. HEFRON regarded the amendment as proposing unnecessary labor and unnecessary expense. He saw in the report made of the argument here the other day it was stated that lawyers would resort to to the practice of abstracting papers from the files, and he believed such a person would resort to that practice as well when a copy is on file as when only the original is there. Such a rule would unnecessarily incumber the record,
Mr. TRAYLOR asserted that in time it will be necessary to increase the number of circuits in this State to fifty under the opeations of this amendment, if enacted into a law, and instead of Courts being held two weeks they will continue four weeks.
Mr. BELL submitted there could be no real hardship resulting from the adoption of this amendment. The Court could take all the circumstances into consideration before adopting such on order. In the Speaker's own city this amendment would work well. The Court would adopt the rule that no original paper should leave the files. He appealed to Senators who had page: 224[View Page 224] practiced in the Federal Court, where this rule prevails. It does not work more costs in the case, as has been suggsted. The copy goes with the original, for which no fee shall be charged.
Mr. HEFRON moved to amend the amendment, that where an opposing party or his attorney, desire a copy, on motion, the Court makes a rule requiring the other party to make a party.
Mr. BELL believed this amendment to the amendment would destroy the usefulness of the amendment. If left as it is, every party filing a claim would file a letter-press copy with it.
The amendment to the amendment was rejected, and the amendment was adopted by yeas, 26; nays, 14.
Mr. Kramer moved to reconsider the vote adopting Section 38, so:
It was not intended to place in power of parties to suits to advertise in any paper they saw fit. This amendment precluded any choice where there is but one paper printed in the County. In 1879 the Legislature passed an act making it legal to print any legal notice in a German or any other paper, provided the matter itself was printed in English.
The motion was rejected by yeas, 18; nays, 23.
Mr. CHAPMAN moved to amend Section 569 so as to require all transcripts filed in the Supreme Court to be printed, the cost to be taxed to the losing party. He said: The printing of the transcript would do as much toward expediting business as any action we could take. It would boil down the record so that transcripts the Supreme Court would have to consider would not average one-half in bulk. This rule obtains in the Supreme Court of the United States and in most of the States. It would be a great advantage, not ony to attorneys, but to litigants.
Mr. BROWN regarded the adoption of that as the Iaw would be an absolute denial of appeals in a lalrge number of cases. In suits where a large amount is involve, and litigants are able to pay, they can have them printed now if they want to.
THe amendment was rejected.
On motion, the bill was ordered engrossed.
The Senate adjourned till to-morrow.
