Court of Claims. The state is a sovereign body and cannot be sued without its permission. There are many claims against the state which should be determined by some tribunal, and to meet the necessity most states have established Courts of Claims, which have exclusive jurisdiction to hear and determine such claims. -- Reference. A Referee is a person appointed by the court to hear the evidence in a case and to report thereon to the court. It is customary for the court to grant a reference when the case requires the examination of a long account. In some other cases a reference may be had either upon motion of the parties or in the discretion of the judge. A case involving a long account is tried before a referee because of the difficulty the jurors would have in carrying in their minds the numerous items involved therein and the great delay to which the court would be subjected on account of the expenditure of time required to hear cases of this character. A referee hears the case in the same manner as a judge, and has the same power to preserve order and grant adjournments. QUESTIONS 1. For what purpose are courts established? 2. What is the jurisdiction of a court? 3. What is the effect of a decision of a court not having jurisdiction of the question? 4. Name and define the two different classes of jurisdiction. 5. (a) What is a court of original jurisdiction? (b) Of appellate jurisdiction? 6. Define courts of record; courts not of record. 7. Define civil and criminal courts; common law and equity. 8. Distinguish between the courts of general jurisdiction and those of special jurisdiction. 9. How are the courts of the United States established, and over what questions have they jurisdiction? 10. Name the different United States courts, and describe each. II. (a) What is the lowest court in your state? (b) What are the limits of its jurisdiction, both civil and criminal? (c) By whom is it conducted? 12. (a) Is there a county court in your state? (b) What is its name and its jurisdiction? 13. (a) What court in your state has jurisdiction over the probate of wills? (b) What other jurisdiction, if any, has it? 14. (a) What is the lowest court of general jurisdiction in your state? (b) Are there any classes of cases which it cannot determine? 15. What courts in your state hear equity cases? 16. What court in your state, if any, has intermediate appellate jurisdiction? 17. What is the highest court in your state and what is its jurisdiction? 18. (a) Is there a court of claims in your state? (b) Why is such a court established? (c) Over what questions does it have jurisdiction? PLEADING AND PRACTICE We have learned that a system of courts is established in each state as well as in the United States. To enable the courts to conduct their business in an orderly manner, certain rules of practice are prescribed which must be observed by those desiring relief in these courts. Action. When a person desires the relief afforded by the courts, he institutes an action or suit. An action is defined as the legal and formal demand of one's rights made upon another person or party and insisted upon in a court of justice. Parties. In an action at law it is necessary that there be two or more parties. The party who brings the action is known as the plaintiff, and the one against whom it is brought, as the defendant. In a criminal action the plaintiff is the state or the people of the state, and the defendant is the one accused of the crime. The same person cannot be both plaintiff and defendant. A party in all civil cases must be competent to contract; but when incompetent, as in the case of an infant or lunatic, he may bring suit through a person appointed for that purpose and known as a guardian. Summons. An action is commenced by the service of a notice upon the defendant, this notice being called a summons. The summons is in some jurisdictions issued by the judge or clerk of the court, while in other jurisdictions it may be issued by the attorney for the plaintiff. This summons must be served personally upon the defendant, either by a sheriff or a constable, or by a person of suitable age. The laws expressly provide in a few cases that the summons may be served upon the defendant by advertising it in a newspaper, but this is only in case the defendant is not within the state, or if within the state he cannot be located. Pleadings. After an action or suit has been commenced by the service of a summons, the parties must serve their pleadings within a certain prescribed time. These pleadings are the formal allegations of the parties by which both plaintiff and defendant present to the court and to each other their respective versions of the question in dispute. Complaint. The complaint, which is the first pleading in a case, and is in some states called the petition or declaration, consists of a statement of the cause of action which the plaintiff sets forth as his reason for seeking the aid of the court against the defendant. Under the old common law the forms of pleadings were very technical, but under the modern form of procedure they are required only to set forth the facts in a clear and concise manner. The complaint is commonly served with the summons, but may be served later. After the complaint has been served upon the defendant or filed with the court, as the rules of the particular court may require, it is then necessary for the defendant within a certain number of days (usually twenty) to file or serve a statement of the reasons why he should not comply with the demands of the plaintiff. If such a statement is not filed, the plaintiff is given judgment against the defendant by default. The pleading which is filed by the defendant may be either an answer or a demurrer. Answer. The answer, or plea as it is sometimes called, is a statement in concise form of the defendant's defense to the matters set up in the complaint. The answer may deny the claim of the plaintiff, or it may admit it and set up other facts by way of counterclaim or set-off. To illustrate, the plaintiff may sue for $100, which he alleges in his complaint the defendant owes him for the purchase price of a boat sold by plaintiff to defendant. The defendant in his answer may allege that he did not purchase the boat, but merely took it to keep for its use, and this would be a denial. Again, he may admit purchasing the boat for $100, but allege that he worked for defendant three months at $50 per month, and that his wages had not been paid, and ask that this be an offset against the price of the boat, and that he, the defendant, be given a judgment for the balance of $50. This defense constitutes a counterclaim or set-off. Reply. When a counterclaim is alleged, new facts are brought up and it is necessary for the plaintiff, if he wishes to deny them, to make a reply, or replication, which is really the plaintiff's reply or answer to the new facts set forth by the defendant. Demurrer. The defendant may consider that the facts set up in the plaintiff's complaint, even if true, do not constitute a sufficient case in law against him, and for this reason it does not require that a defense be interposed, therefore he demurs to the plaintiff's complaint. By demurring he in effect says, "Admitting that all the plaintiff sets forth in his complaint is true, still he is not entitled to recover." The question on the demurrer must be argued before the judge, and if the demurrer is sustained, the plaintiff must correct or amend his complaint or he fails in his action. If the demurrer is overruled, the defendant must answer or the case will go against him. A demurrer may also be interposed to an answer or a reply in the same manner as to the complaint. Trial. After the pleadings are served the case comes to trial. A trial is held before the court, consisting of the judge alone in some cases and in others of a judge and a jury. A jury is a body of men, usually twelve, who are brought together to hear a case and sworn to decide the same according to the evidence brought before them Questions of Law or of Fact. - Questions which give rise to a trial may be questions of law or questions of fact. In the former the facts of the case are admitted, and the question to be decided is the application of the law to these facts. This is a question for the court and is tried without a jury. A question of fact arises when the testimony of the witnesses differs and the true state of facts remains to be determined. Questions of fact are generally tried before a jury. Every criminal case may be tried before a jury if the defendant demands a jury trial. As a rule, an equity case is tried before the judge without a jury. Evidence. All cases involving simply a question of law are tried before a judge without a jury. It may be said that the law is to be decided by the judge, and the facts by the jury. The jurors are sworn to determine the case according to the evidence. The evidence consists of the testimony of persons who know something about the facts and are sworn to tell the truth. These persons are known as witnesses. Written documents and papers pertaining to the case are also admitted as evidence. Subpoena. In order to procure the attendance of the witnesses at the trial of a case the court issues an order, called a subpoena, commanding them to appear at a certain time to give evidence in the case, and in default of their appearance they are subject to a fine for contempt of court. Refusal to testify when called as a witness is also contempt of court. Deposition. When a necessary witness is outside of the state, or, in the justice court, outside of the county or an adjoining county, it is not within the power of the court to compel his attendance, therefore statutes have been passed allowing his testimony to be taken in a certain prescribed way before a notary public or other officer, who reduces the testimony to writing and returns it to the court. The opposing party must have notice of the time and place of the taking of the deposition and also an opportunity to question the witness. Lawyers. The case for both the plaintiff and the defendant is conducted by officers of the court known as lawyers. The lawyer prepares the pleadings for his side of the case, presents the case to the court, and questions the witnesses. In some courts a party may conduct his own case. Verdict. After the jury has heard the witnesses for plaintiff and defendant, it weighs the evidence on both sides of the question and arrives at a decision as to the party in the right. This decision is called the verdict. In order to render a verdict the jurors must all agree. If, after a reasonable time, they have failed to agree, they are dismissed, and a new trial is held before another jury. Judgment. The verdict of a jury is but a determination of the facts of a case. It is for the judge to give the judgment, |