A QUO. Lat. From which.

A court a quo (also written "a

qua") is a court from which a cause has been removed. The *ACTUAL CASE
judge a quo is the judge. in such court. Clegg v. Alexander, ACTUAL. Real; substantial; existing presently in
6 La. 339. A term used, with the correlative ad quem (to act, having a valid objective existence as
which), in expressing the computation of time, and also of opposed to that which is merely theoretical or
distance in space. Thus, dies a quo, the day from which possible. Ciaccio v. Hartman, 170 La. 949, 129 So.
and dies ad quem, the day to which, a period of time is 540. Opposed to potential, possible, virtual,
computed. So, terminus a quo, the point or limit from conceivable, theoretical, hypothetical, or
which, and terminus ad quem, the point or limit to which, nominal. American Ins. Co. of Newark, N. J., v.
a distance or passage in space is reckoned Seminole County Board of Education, 51 Ga.App.
808, 181 S.E. 783, 786. Something real, in
ACT OF STATE. An act done by the sovereign power of a opposition to constructive or speculative;
country, or by its delegate, within the limits of the power something existing in act. Astor v. Merritt, 4 S.Ct.
vested in him. An act of state cannot be questioned or 413, 111 U.S. 202, 28 L. Ed. 401. Existing in act,
made the subject of legal proceedings in a court of law. fact, or reality. Guarisco v. Massachusetts
Bonding & Insurance Co., 4 N.Y.S.2d 788, 792,
ACTION IN PERSONAM, IN REM. See In Personam, 167 Misc. 875.
In Rem
It is used as a legal term in contradistinction to
IN PERSONAM, IN REM. In the Roman law, from which virtual or constructive as of possession or
they are taken, the expressions "in rem" and "in occupation; Cleveland v. Crawford, 7 Hun (N.Y.)
personam" were always opposed to one another, an act or 616; or an actual settler, which implies actual
proceeding in personam being one done or directed residence; ' McIntyre v. Sherwood, 82 Cal. 139,
against or with reference to a specific person, while an act 22 Pac. 937. An actual seizure means nothing
or proceeding in rem was one done or directed with more than seizure, since there was no fiction of
reference constructive seizure before the act; L.R. 6 Exch.
to no specific person, and consequently against or with 203.
reference to all whom it might concern, or "all the world." Actually is opposed to seemingly, pretendedly,
The phrases were especially applied to actions; an actio in or feignedly, as actually engaged in farming
personam being the remedy where a claim against a means really, truly, in fact; In re Strawbridge &
specific person arose out of an obligation, whether ex Mays, 39 Ala. 367; Ayer & Lord Tie Co. v.
contractu or ex maleficio, while an actio in rem was one Commonwealth, 208 Ky. 606, 271 S.W. 693, 694.
brought for the assertion of a right of property, easement, As to actual "Bias," "Damages," "Delivery,"
status, etc., against one who denied or infringed it. See "Fraud," "Mal ice, " "Notice," "Occupation,"
Inst. 4, 6, 1; Gaius, 4, 1, 1-10. "Ouster," "Possession," "Residence," "Seisin,"
"Total Loss," see those titles.
From this use of the terms, they have come to be applied
to signify the antithesis of "available against a particular CASE. Action, Cause, Suit, or Controversy A
person," and "available against the world at large." Thus, general term for an action, cause, suit, or
Jura in personam are rights primarily available against controversy, at law or in equity; a question
specific persons; Jura in rem, rights only available against contested before a court of justice; an aggregate
the world at large. Hook v. Hoffman, 147 P. 722, 727, 16 of facts which furnishes occasion for the exercise
Ariz. 540; Beck v. Natalie Oil Co., 143 La. 153, 78 So. 430. of the jurisdiction of a court of justice. Quoted
So a judgment or decree is said to be in rem when it binds with approval in Kelly v. Roetzel, 64 Okl. 36, 165
third persons. Such is the sentence of a court of admiralty P. 1150, 1153. See, also, Gebhard v. Sattler, 40
on a question of prize, or a decree of nullity or dissolution Iowa, 156; Martin v. Hunter, 1 Wheat. 352, 4
of marriage, or a decree of a court in a foreign country as L.Ed. 97. A controversy that is litigated. City of
to the status of a person domiciled there. Lastly, the terms Akron v. Roth, 88 Ohio St. 456, 103 N.E. 465,
are sometimes used to signify that a judicial proceeding 467. A cause of action. Strother v. Union Pac. R.
operates on a thing or a person. Thus, it is said of the court Co., D.C.Mo., 220 F. 731, 732; Colla v. Carmichael
of chancery that it acts in personam, and not in rem, U-Drive Autos, 111 Cal.App. 378, 294 P. 378, 380
meaning that its decrees operate by compelling
defendants to do what they are ordered to do, and not by AD LITEM. For the suit; for the purposes of the suit;
producing the effect directly. Sweet. See Cross v. pending the suit. A guardian ad litem is a guardian
Armstrong, 44 Ohio St. 613, 10 N.E. 160 appointed to prosecute or defend a suit on behalf of a
party incapacitated by infancy or otherwise.
ACTIONABLE. That for which an action will lie, furnishing
legal ground for an action.
ADJUDICATE. To settle in the exercise of judicial authority. purpose of dispensing with proof by the opposing party of
To determine finally. Synonymous with adjudge in its some fact claimed by the latter to be true. Wiley v. Rutland
strictest sense. United States v. Irwin, 8 S.Ct. 1033, 127 R. Co., 86 Vt. 504, 86 A. 808, 810. Concession by defendant
U.S. 125, 32 L.Ed. 99; Street v. Benner, 20 Fla. 700. that she had executed a bill of sale for the automobile to
intervener to secure an indebtedness was an "admission in
ADMISSIONS. Confessions, concessions or voluntary judicio" by defendant against her title to the automobile.
acknowledgments made by a party of the existence of McDay v. Long, 63 Ga.App. 421, 11 S.E.2d 395, 399. But
certain facts. Roosevelt v. Smith, 40 N.Y.S. 381, 17 Misc. opening statements of counsel are not, technically,
323. More accurately regarded, they are statements by a "admissions." Wilkey v. State ex rel. Smith, 238 Ala. 595,
party, or some one identified with him in legal interest, of 192 So. 588, 591. See Acquiescence; Quasi Admissions;
the existence of a fact which is relevant to the cause of his True Admission.
adversary. Brooks v. Sessoms, 171 S.E. 222, 223, 47
Ga.App. 554. They are against the interest of the party Pleading
making them. Little Fay Oil Co. v. Stanley, 90 Okl. 265, 217 The acknowledgment or recognition by one
P. 377, 378. party of the truth of some matter alleged by the
opposite party, made in a pleading, the effect of
It is not essential that an "admission" be contrary to which is to narrow the area of facts or
interest of party at time it is made; it is enough if it be allegations required to be proved by evidence.
inconsistent with position which party takes either in Connecticut Hospital v. Brookfield, 69 Conn. 1,
pleadings or at trial. Harvey v. Provandie, 83 N.H. 236, 36 A. 1017.
141 A. 136, 140. The term "admission" is usually applied to
civil transactions and to those matters of fact in criminal An allegation not denied is deemed not
cases which do not involve criminal intent, while the term controverted, and silence of pleader is usually
"confession" is generally restricted to acknowledgments of treated as an admission against him for purpose
guilt. People v. Sourisseau, 62 Cal.App.2d 917, 145 P.2d of the action. Doughty v. Pallissard, 3 N.Y.S.2d
916, 923. State v. Lindsey, 26 N.M. 526, 194 P. 877, 878. 452, 453, 167 Misc. 55. Generally pleadings must
be regarded as "judicial admissions", rather than
An "admission" as applied in criminal cases is the avowal of ordinary "admissions". Hughes v. Fort Worth
a fact or of circumstances from which guilt may be Nat. Bank, Tex.Civ.App., 164 S.W.2d 231, 232. In
inferred, but only tending to prove the offense charged, confession and avoidance, admission of truth of
and not amounting to a confession of guilt. Theis v. State, opposite party's pleading is made. Express
Ga., 164 S. E. 456, 457. A statement by defendant. of fact admissions may be made of matters of fact only.
or facts pertinent to issues tending, in connection with See Confession and Avoidance. In Equity. Partial
proof of other facts or circumstances, to prove guilt, but admissions are those which are delivered in
which is, of itself, insufficient to authorize conviction. terms of uncertainty, mixed up with explanatory
Commonwealth v. Elliott, 292 Pa. 16, 140 A. 537, 538. Does or qualifying circumstances.
not include statements which are part of the res gestw. Plenary admissions are those which admit the
State v. Clark, 102 Mont. 432, 58 P.2d 276, 278. truth of the matter without qualification,
whether it be asserted as from information and
Direct, called also express, admissions are those which are belief or as from actual knowledge. See Burrell v.
made in direct terms. Implied admissions are those which Hackley, C.C.N.Y., 35 F. 833.
result from some act
or failure to act of the party. Part payment of a debt is an "Admissions against interest" are any statements
admission of liability to pay debt. Hart v. Deshong, Del., 1 made by or attributable to a party to an action,
Terry 218, 8 A.2d 85, 87. Defendants' failure to specifically which constitute admissions against his interest
deny their signatures to notes, "admission" that they and tend to establish or disprove any material
signed the acknowledgments. Haas v. Johnson, 203 La. fact in the case. Kellner v. Whaley, 148 Neb. 259,
697, 14 So.2d 606, 608. Undenied accusations were 27 N.W.2d 183, 189
implied "admission". State v. Postal, 215 Minn. 427, 10
N.W.2d 373, 378. Incidental admissions are those made in ADVERSE PARTY. An "adverse party" entitled to notice of
some other connection, or involved in the admission of appeal is every party whose interest in relation to the
some other fact. Judicial admissions are those made in judgment or decree appealed from is in conflict with the
court by a person's attorney for the purpose of being used modification or reversal sought by the appeal.
as a substitute for the regular legal evidence of the facts at
the trial. Martin v. State, 46 Okl.Cr. 411, 287 P. 424. Such Every party interested in sustaining the judgment or
as are made voluntarily by a party, which appear of record decree. Harrigan v. Gilchrist, 121 Wis. 127, 99 N.W. 909. All
in the proceedings of the court. Formal acts done by a parties appearing against losing party unless reversal of
party or his attorney in court on the trial of a cause for the case will not be to party's detriment. Shea v. Shea,
Iowa, 264 N.W. 590. Any party who would be prejudicially AFFIRMATIVE DEFENSE. In code pleading. New matter
affected by a modification or reversal of the judgment constituting a defense; new matter which, assuming the
appealed from. Great Falls Nat. Bank v. Young, 67 Mont. complaint to be true, constitutes a defense to it. Carter v.
328, 215 P. 651, 652. One who has interest in opposing Eighth Ward Bank, 33 Misc. 128, 67 N.Y.S. 300
object sought to be accomplished by appeal. In re Baxter's
Estate, 94 Mont. 257, 22 P.2d 182. Party to record, ALIAS WRIT. A second writ. Ditmar v. Beckham,
whose interest in subject-matter of appeal is adverse to, Tex.Civ.App., 77 S.W.2d 893, 894.
reversal or modification of judgment or order appealed
from. MacDonald v. Superior Court in and for City and At common law "alias" as applied to an execution or fieri
County of San Francisco, 101 Cal.App. 423, 281 P. 672, 673. facias referred to new writ issued after original fieri facias
A party who, by the pleadings, is arrayed on the opposite was returned unproductive, but under the Code the term
side. Merrill v. St. Paul City Ry. Co., 170 Minn. 332, 212 applies to an execution issued in lieu of a lost original. U-
N.W. 533. The other party to the action. Highland v. Hines, Driv-It System of Macon v. Lyles, 71 Ga.App. 70, 30 S.E.2d
80 N.H. 179, 116 A. 347, 349. A party to the record for, or 111, 114. A writ issued where one of the same kind has
against, whom judgment is sought. Merchants' Supply Co. already been issued in the same cause without having
v. Hughes' Ex'rs, 139 Va. 212, 123 S.E. 355, 356. "Opposite" been effective. Schmidt v. Schmidt, 108 Mont. 246, 89 P.2d
party synonymous. In re Wah-shah-she-metsa- he's Estate, 1020, 1021. It is used of all species of writs. Historically,
111 Okl. 177, 239 P. 177, 178. And term is not necessarily the word "alias" refers to a former command of the same
confined to plaintiffs as against defendants, or vice versa. sort, and it was part of a Latin sentence meaning, "We
Arwood v. Hill's Adm'rs, 135 Va. 235, 117 S.E. 603, 605. But command you as we have before (sicut alias) commanded
a defaulting defendant is not an "adverse party" ; Holt v. you." Schmidt v. Schmidt, 108 Mont. 246, 89 P.2d 1020,
Empey, 32 Idaho, 106, 178 P. 703; nor is one who is named 1021.
as a party but is not served; Kissler v. Moss, 26 Idaho, 516,
144 P. 647. Compare Fergen v. Lonie, 50 S.D. 328, 210 ALLEGATA ET PROBATA. Lat. Things alleged and proved.
N.W. 102, 103 (garnishment debtor not served in The allegations made by a party to a suit, and the proof
garnishment proceeding). adduced in their support. Crump v. State, 30 Ala.App. 241,
4 So.2d 188, 189.
AFFIDAVIT. A written or printed declaration or statement
of facts, made voluntarily, and confirmed by the oath or ALTERNATIVE DISPUTE RESOLUTION
affirmation of the party making it, taken before an officer Alternative Dispute Resolution (ADR) is the procedure for
having authority to administer such oath. Cox v. Stern, 170 settling disputes without litigation, such as arbitration,
Ill. 442, 48 N.E. 906, 62 Am.St.Rep. 385; Hays v. Loomis, 84 mediation, or negotiation. ADR procedures are usually less
Ill. 18. A statement or declaration reduced to writing, and costly and more expeditious. They are increasingly being
sworn to or affirmed before some officer who has utilized in disputes that would otherwise result in
authority to administer an oath or affirmation. Shelton v. litigation, including high-profile labor disputes, divorce
Berry, 19 Tex. 154, 70 Am.Dec. 326, and In re Breidt, 84 actions, and personal injury claims.
N.J.Eq. 222, One of the primary reasons parties may prefer ADR
94 A. 214, 216. proceedings is that, unlike adversarial litigation, ADR
procedures are often collaborative and allow the parties to
A written or printed declaration or statement of facts, understand each other's positions. ADR also allows the
made voluntarily, and confirmed by the oath or affirmation parties to come up with more creative solutions that a
of the party making it, taken before an officer having court may not be legally allowed to impose.
authority to administer such oath. June v. School Dist. No. Terms to Know
11, Southfield Tp., 283 Mich. 533, 278 N.W. 676, 677, 116  Arbitration - A process similar to an informal trial
A.L.R. 581. Any voluntary ex parte statement reduced to where an impartial third party hears each side of
writing and sworn to or affirmed before some person a dispute and issues a decision; the parties may
legally authorized to administer oath or affirmation, made agree to have the decision be binding or non-
without notice to adverse party and without opportunity binding
to cross-examine. Kirk v. Hartlieb, 193 Ark. 37, 97 S.W.2d  Binding and Non-Binding - A binding decision is a
434, 435, 436. The word sometimes includes ruling that the parties must abide be whether or
"depositions." U. S. v. Kaplan, D.C.Ga., 286 F. 963, 970. not they agree with it; a non-binding decision is a
"Affidavits" are of two kinds; those which serve as ruling that the parties may choose to ignore
evidence to advise the court in the decision of some  Arbitrator - An impartial person given the power
preliminary issue or determination of some substantial to resolve a dispute by hearing each side and
right, and those which merely serve to invoke the judicial coming to decision
power. Worthen v. State, 189 Ala. 395, 66 So. 686, 688.  Hearing - A proceeding in which evidence and
arguments are presented, usually to a decision
maker who will issue ruling
  Mediation - A collaborative process where a
mediator works with the parties to come to a In pleading, under the Codes of Civil Procedure,
mutually agreeable solution; mediation is usually the answer is the formal written statement made
non-binding by a defendant setting forth the grounds of his
For more definitions, visit the FindLaw Legal Dictionary. defense; corresponding to what, in actions under
Other Considerations When Hiring an Alternative Dispute the common-law practice is called the "plea."
Resolution Attorney But as used in a statute providing that defendant
Even though Alternative Dispute Resolution is intended to must appear and answer the petition, "answer"
reduce the costs, stress, and formality associated with refers to any sort of pleading filed by defendant.
going to court, many parties still hire attorneys to State ex rel. Oliver Hast Auction Co. v. Grimm,
represent them at ADR proceedings. They also seek out 197 Mo.App. 566, 196 S.W. 1019, 1021. Cross-
pre-proceeding consultations about possible solutions or complaint. Celina Mut. Casualty Co. v. Baldridge,
strategies. Just as with any legal dispute, you should hire 213 Ind. 193, 12 N.E.2d 258, 260. Counterclaim.
an attorney with experience in your particular legal issue Long v. Mutual Trust Life Ins. Co., 191. Minn.
who also is familiar with the collaborative process of ADR. 163, 253 N.W. 762. Motion to quash service of
Additionally, arbitrators and mediators are often lawyers. summons.
Rather than hiring a lawyer to represent each party in an Phillips v. Manufacturers Trust Co., C.C. A.Idaho,
ADR proceeding, some parties agree to hire a single lawyer 101 F.2d 723, 727. Objections by contestants to
to act as an impartial third party to guide the resolution petition for probate of will. In re Swim's Will, 258
and ensure that all solution proposals are legal. N.Y.S. 458, 144 Misc. 206. Objections to
If you are involved in a legal issue that you would like to be executor's final report. Meier v. Union Trust Co.
resolved through ADR, contact an ADR lawyer immediately of Indianapolis, 93 Ind.App. 457, 176 N. E. 42, 51.
to explore your legal options. Demurrer. Evans v. Superior Court in and for Los
Angeles County, 14 Cal.App.2d 743, 59 P.2d 159,
160, contra. Mariner v. Milisich, 45 Nev. 193, 200
AMICUS CURVE, Lat. A friend of the court. P. 478. In Massachusetts, the term denotes the
A by-stander (usually a counsellor) who interposes and statement of the matter intended to be relied
volunteers information upon some matter of law in regard upon by the defendant in avoidance of the
to which the judge is doubtful or mistaken, Fort Worth plaintiff's action, taking the place of special pleas
& D. C. Ry. Co. v. Greathouse, Tex.Civ.App., 41 S.W.2d in bar, and the general issue, except in real and
418, 422; or upon a matter of which the court may take mixed actions. Pub.St.Mass.1882, p. 1287.
judicial cognizance. The Claveresk, C.C.A.N.Y., 264 F. 276,
279; In re Perry, 83 Ind. App. 456, 148 N.E. 163, 165. In matrimonial suits in the (English) probate,
Implies friendly intervention of counsel to remind court of divorce, and admiralty division, an answer is the
legal matter which has escaped its notice, and regarding pleading by which the respondent puts forward
which it appears to be in danger of going wrong. Blanchard his defense to the petition.
v. Boston & M. R., 86 N.H. 263, 167 A. 158, 160. Browne, Div. 223. Under the old admiralty
Also a person who has no right to appear in a practice in England, the defendant's first
suit but is allowed to introduce argument, authority, pleading was called his "answer." Williams & B.
or evidence to protect his interests. Ladue v. Adm. Jur. 246. Frivolous answer. See Sham
Goodhead, 181 Misc. 807, 44 N.Y.S.2d 783, 787. Answer, infra. An irrelevant answer is one that
has no substantial relation to the controversy;—
ANSWER. As a verb, the word denotes an assumption of distinguishable from a sham answer. Rosatti v.
liability, as to "answer" for the debt or default of another. Common School Dist. No. 96 of Cass County, 53
N.D. 268, 205 N.W. 678, 679.
Pleading
Strictly speaking, it is a pleading by which A sham answer is one sufficient on its face but so
defendant in suit at law endeavors to resist the clearly false that it presents no real issue to be
plaintiff's demand by an allegation of facts, tried. Bank of
either denying allegations of plaintiff's complaint Richards, Mo., v. Sheasgreen, 153 Minn. 363, 190
or confessing them and alleging new matter in N.W. 484. One good in form, but false in fact and
avoidance, which defendant alleges should not pleaded in good faith. Burkhalter v.
prevent recovery on facts alleged by plaintiff. In Townsend, 139 S.C. 324, 138 S.E. 34, 36. A
re Herle's Will, 173 Misc. 879, 19 N.Y.S.2d 263, frivolous answer, on the other hand, is one
265. In chancery pleading, the term denotes a which on its face sets up no defense, although it
defense in writing, made by a defendant to the may be true in fact.
allegations contained in a bill or information filed
by the plaintiff against him.
 A voluntary answer, in chancery, was an answer but before the service of any process or legal notice to
put in by a defendant, when plaintiff had filed no appear ; de bene esse, when made provisionally or to
interrogatories which required to be answered. remain good only upon a future contingency ; or when
Hunt, Eq. designed to permit a party to a proceeding to refuse to
submit his person to the jurisdiction of the court unless it
Practice is finally determined that he as forever waived that right.
A reply to interrogatories; an affidavit in answer Farmers Trust Co. v. Alexander, 334 Pa. 434, 6 A.2d 262,
to interrogatories. The declaration of a fact by a 265; subsequent, when made by a defendant after an
witness after a question has been put, asking for appearance has already been entered for him by the
it. plaintiff ; corporal, when the person is physically present in
court. An answer constitutes an "appearance." Wieser v.
APPEARANCE. In practice. A coming into court as party to a Richter, 247 Mich. 52, 225 N.W. 542, 543. A party who
suit, whether as plaintiff or defendant. Stephens v. answers, consents to a continuance, goes to trial, takes an
Ringling, 102 S.C. 333, 86 S.E. 683, 685. The formal appeal, or does any other substantial act in a cause,
proceeding by which a defendant submits himself to the although he has not been served with summons, is
jurisdiction of the court. Flint v. Comly, 95 Me. 251, 49 A. deemed to have entered his "appearance" unless he
1044. The voluntary submission to a court's jurisdiction. objects and preserves his protests to the jurisdiction of his
Pacilio v. Scarpati, 300 N.Y.S. 473, 478, 165 Misc. 586; person. Robinson v. Bossinger, 195 Ark. 445, 112 S.W.2d
Braman v. Braman, 258 N.Y.S. 181, 186, 236 App.Div. 164. 637, 640. Acts of an attorney in prosecuting an action on
"Appearance" is the act of appearing, coming, or being in behalf of his client constitute an "appearance." Pacilio v.
sight, becoming visible or clear to apprehension of the Scarpati, 300 N.Y.S. 473, 165 Misc. 586.
mind, of being known as subject of observation or
comprehension, or as a thing proved, of being obvious or Appearance by Attorney
manifest. Hallack & Howard Lumber Co. v. Bagly, 100 Colo. This term and "appearance by counsel" are
402, 68 P.2d 442, 443. distinctly different, the former being the
substitution of a legal agent for the personal
Appearance anciently meant an actual coming into court, attendance of the suitor, the latter the
either in person or by attorney. Appearance may be made attendance of an advocate without whose aid
by the party in person or by his agent. Everett Ry., Light & neither the party attending nor his attorney in
Power Co. v. U. S., D.C.Wash., 236 F. 806, 808. But in his stead could safely proceed; and an
criminal cases the personal appearance of the accused in appearance by attorney does not supersede the
court is often necessary. appearance by counsel. Mercer v. Watson, 1
Watts (Pa.) 351. See In re Ford's Estate, 163
An appearance may be either general or special; the N.Y.S. 960, 98 Misc. 100.
former is a simple and unqualified or unrestricted
submission to the jurisdiction of the court, the latter a Appearance Day
submission to the jurisdiction for some specific purpose The day for appearing; that on which the parties
only, not for all the purposes of the suit. Louisville & N. R. are bound to come into court. Cruger v. Mc-
Co. v. Industrial Board of Illinois, 282 Ill. 136, 118 N.E. 483, Cracken (Tex.Civ.App.) 26 S.W. 282. Compare
485. City of Decatur v. Barteau, 260 Ill. 612, 103 N.E.
601, 602.
A special appearance is for the purpose of testing the
sufficiency of service or the jurisdiction of the court; a Appearance Docket
general appearance is made where the defendant waives A docket kept by the clerk of the court, in which
defects of service and submits to the jurisdiction. State v. appearances are entered, containing also a brief
Huller, 23 N.M. 306, 168 P. 528, 534, 1 A.L.R. 170. abstract of all the proceedings in the cause. See
McAdams v. Windham 191 Ala. 287, 68 So. 51,
An appearance may also be either compulsory or 52.
voluntary, the former where it is compelled by process
served on the party, the latter where it is entered by his Notice of Appearance
own will or consent, without the service of process, A notice given by defendant to a plaintiff that he
though process may be outstanding. 1 Barb.Ch.Pr. 77. It is appears in the action in person or by attorney.
said to be optional when entered by a person who
intervenes in the action to protect his own interests, APPELLANT. The party who takes an appeal from one court
though not joined as a party; it occurs in chancery practice, or jurisdiction to another. Used broadly or nontechnically,
especially in England; conditional, when coupled with the term includes one who sues out a writ of error.
conditions as to its becoming or being taken as a general Widgins v. Norfolk & W. Ry. Co., 142 Va. 419, 128 S.E. 516,
appearance; gratis, when made by a party to the action, 518.
 the record to exhibit to the court what might otherwise be
APPELLEE. The party in a cause against whom an appeal is insufficiently shown. Davidson v. Bezant, 101 Fla. 1296,
taken; that is, the party who has an interest adverse to 132 So. 488, 489. "Assignment of error" is formal
setting aside or reversing the judgment. Slayton v. Horsey, complaint of some action of trial court, as distinguished
97 Tex. 341, 78 S.W. 919. Sometimes also called the from "proposition," which merely sets forth reasons why
"respondent. such action is erroneous. Standard v. Texas Pacific Coal &
Oil Co., Tex.Civ. App., 47 S.W.2d 443, 449.
In a nontechnical sense, "appellee" may include a
defendant in writ of error. Widgins v. Norfolk & W. Ry. Co., ATTACHMENT. The act or process of taking, apprehending,
142 Va. 419, 128 S.E. 516, 518. or seizing persons or property, by virtue of a writ,
summons, or other judicial order, and bringing the same
In old English law. Where a person charged with treason or into the custody of the law; used either for the purpose of
felony pleaded guilty and turned approver or "king's bringing a person before the court, of acquiring jurisdiction
evidence," and accused another as his accomplice in the over the property seized, to compel an appearance, to
same crime, in order to obtain his own pardon, the one so furnish security for debt or costs, or to arrest a fund in the
accused was called the "appellee." 4 Bl.Comm. 330. hands of a third person who may become liable to pay it
over. Also the writ or other process for the
ARRAIGNMENT. See Arraign. ARRAIGN. In criminal accomplishment of the purposes above enumerated, this
practice. To bring a prisoner to the bar of the court to being the more common use of the word. A remedy
answer the matter charged upon him in the indictment. Ex ancillary to an action by which plaintiff is enabled to
parte Jeffcoat, 109 Fla. 207, 146 So. 827, 828. The acquire a lien upon property or effects of defendant for
arraignment (q. v.) of a prisoner consists of calling upon satisfaction of judgment which plaintiff may obtain. First
him by name, and reading to him the indictment, (in the Nat. Bank & Trust Co. of Vermillion v. Kirby, 62 S.D. 489,
English tongue,) and demanding of him whether he be 253 N.W. 616; Lipscomb v. Rankin, Tex.Civ.App., 139
guilty or not guilty, and entering his plea. State v. Voelpel, S.W.2d 367, 369. Though sometimes called an ancillary or
213 Iowa 702, 239 N.W. 677, 679. auxiliary proceeding, it is in all essential respects, a suit.
Farmers State Bank of Lexington v. Lemmer, 130 Neb. 211,
In old English law. To order, or set in order; to conduct in 264 N.W. 415, 416.
an orderly manner; to prepare for trial. To arraign an
assise was to cause the tenant to be called to make the The purpose is to take defendant's property into legal
plaint, and to set the cause in such order as the tenant custody, so that it may be applied on defendant's debt to
might be enforced to answer thereunto. Litt. § 442; Co. plaintiff when established. John Deere Plow Co. of St. Louis
Litt. 262b. v. L. D. Jennings, Inc., 203 S.C. 426, 27 S.E.2d 571, 572;
Union Bank & Trust Co. v. Edwards, 281 Ky. 693, 137 23.
—Assignment of error. See Error. Assignment of Errors W.2d 344, 348.
In practice. The statement of the plaintiff's case on a writ
of error, setting forth the errors complained of; At common law, "attachment" was procedure whereby
corresponding with the declaration in an ordinary action. 2 sheriff was, commanded to attach a defendant who, after
Tidd, Pr. 1168; 3 Steph.Comm. 644. Armour v. being personally served, disobeyed original writ of
Pennsylvania R. Co., 353 Ill. 575, 187 N.E. 532, 534; summons, by keeping certain of his goods which he would
Fahrenbrink v. Moore, 51 Ariz. 176, 75 P.2d 360, 361. A forfeit if he did not appear, or by making him find
specification of the errors upon which the appellant will securities who would be amerced if he continued his
rely, with such fullness as to give aid to the court in the nonappearance, and, if after such attachment he still
examination of the transcript. Squires v. Foorman, 10 Cal. neglected to appear, he would not only forfeit this
298; Streeter v. State, 89 Fla. 400, 104 So. 858, 859; security, but was compellable by a writ of distringas
Largent v. Etheridge, Tex. Civ.App., 13 S.W.2d 974, 976; infinite. Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191,
Helms v. Cook, 62 Ind.App. 629, 111 N.E. 632, 633; Wine v. 194, 116 A.L.R. 257.
Jones, 183 Iowa, 1166, 168 N.W. 318, 320.
Execution and attachment distinguished. See
The office of an assignment of error, which is in the nature Execution.
of a pleading by the plaintiff in error or appellant, is not
only to inform the appellate court of the exact complaint Persons
against rulings, whereby, if the complaint be sustained, a A writ issued by a court of record, commanding
judgment or decree may be changed or reversed, hut is to the sheriff to bring before it a person who has
inform the defendant in error or appellee of the precise been guilty of contempt of court, either in
errors relied upon, in order that such defendant in error or neglect or abuse of its process or of subordinate
appellee may take proper steps, or give proper directions powers. 3 Bl.Comm. 280; 4 Bl.Comm. 283;
in his own behalf, for making up a sufficient transcript of Commonwealth
v. Shecter, 250 Pa. 282, 95 A. 468, 470. A "foreign attachment" is a mesne process issued
to compel a foreign debtor to appear to the suit
Property of his creditor, while "attachment execution" is a
A species of mesne process, by which a writ is final process issued for the purpose of enforcing
issued at the institution or during the progress of a judgment already obtained. Williams v. Ricca,
an action, commanding the sheriff to seize the 324 Pa. 33, 187 A. 722, 723.
property, rights, credits, or effects of the
defendant BURDEN OF EVIDENCE refers to the duty of a party to
to be held as security for the satisfaction of such proceed with evidence at the beginning, or at any
judgment as the plaintiff may recover. It is subsequent stage, of the trial, in order to make or meet a
principally used against absconding, concealed, prima facie case.
or fraudulent debtors. U. S. Capsule Co. v. Isaacs,
23 Ind.App. 533, 55 N.E. 832.
BURDEN OF PROOF. (Lat. onus probandi.) In the law of
To Give Jurisdiction evidence. The necessity or duty of affirmatively proving a
Where the defendant is a non-resident, or fact or facts in dispute on an issue raised between the
beyond the territorial jurisdiction of the court, parties in a cause. Willett v. Rich, 142 Mass. 356, 7 N.E.
his goods or land within the territory may be 776, 56 Am. Rep. 684; People v. McCann, 16 N.Y. 58, 69
seized upon process of attachment; whereby he Am. Dec. 642, 15 How.Pr. 503.
will be compelled to enter an appearance, or the
court acquires jurisdiction so far as to dispose of The term "burden of proof" is not to be confused with
the property attached. This is sometimes called "prima facie case," Kendall v. Brownson, 47 N.H. 200;
"foreign attachment." Megee v. Beirne, 39 Pa. Carver v. Carver, 97 Ind. 511, or with expressions referring
50; to a similar idea, such as the "burden of evidence," Hyer v.
Bray v. McClury, 55 Mo. 128. In such a case, the C. E. Holmes & Co., 12 Ga.App. 837, 79 S.E. 58, 60, or "the
proceeding becomes in substance one in rem burden of proceeding," Mason v. Geist, Mo.App., 263 S. W.
against the attached property. St. John v. 236, 237, or the burden of going forward with the
Parsons, evidence, First Nat. Bank v. Ford, 30 Wyo. 110, 216 P. 691,
54 Ohio App. 420, 7 N.E.2d 1013, 1014. 694, 31 A.L.R. 1441. It is frequently said, however, to have
two distinct meanings : (1) the duty of producing evidence
Domestic and Foreign as the case progresses,
In some jurisdictions it is common to give the and (2) the duty to establish the truth of the claim by
name "domestic attachment" to one issuing preponderance of the evidence, and though the former
against a resident debtor, (upon the special may pass from party to party, the latter rests throughout
ground of fraud, intention to abscond, etc.,) and upon the party asserting the affirmative of the issue.
to designate an attachment against a non- Sellers v. Kincaid, 303 Ill. 216, 135 N.E. 429, 433; Stofer v.
resident, or his property, as "foreign." Longwell Dunham, Mo.App., 208 S.W. 641, 644, Again "burden of
v. Hartwell, 30 A. 495, 164 Pa. 533; David E. proof" is sometimes used to refer merely to the rule of
Kennedy, Inc. v. Schleindl, 290 Pa. 38, 137 A. 815, practice fixing the order of proof, as distinguished from the
816, 53 A.L.R. 1020. "preponderance of the evidence" meaning the weight of
evidence. Thompson v. Dyson, 120 Kan. 591, 244 P. 867,
But the term "foreign attachment" more 868
properly belongs to the process otherwise
familiarly known as "garnishment." It was a CAPACITY TO ACT
peculiar and ancient remedy open to creditors The capacity of natural and juridical persons (legal
within the jurisdiction of the city of London, by persons) in general, determines whether they may make
which they were enabled to satisfy their own binding amendments to their rights, duties and
debts by attaching or seizing the money or goods obligations, such as getting married or merging, entering
of the debtor in the hands of a third person into contracts, making gifts, or writing a valid will.
within the jurisdiction of the city. Welsh v.
Blackwell, 14 N.J.Law, 346. This power and CASE AT BAR
process survive in modern law, in all common- AT BAR. Before the court. "The case at bar," etc. Dyer, 31.
law jurisdictions, and are variously denominated.
"garnishment," "trustee process," or CASE AT BENCH
"factorizing." Raiguel v. McConnell, 25 Pa. 362, Bench in legal contexts means simply the location in
363. a courtroom where a judge sits. The historical roots of that
meaning come from judges formerly having sat on long
seats or benches (freestanding or against a wall) when
presiding over a court.[1] The bench is usually an elevated are known or proved to establishsuch as are conjectured
desk area that allows a judge to view the entire to exist.
courtroom.
The word also has a broader meaning in the law – the term CIVIL ACTION. In general An action wherein an issue is
"bench" is a metonym used to describe members of presented fortrial formed by averments of complaint and
the judiciary collectively,[2] or the judges of a particular denials of answer or replication to new matter,White v.
court, such as the Queen's Bench or the Common White, 98 Ind.App. 587, 186 N.E. 349, 351.,an adversary
Bench in England and Wales, or the federal bench in proceeding for declaration, enforcement,or protection of a
the United States.[1] The term is also used when all the right, or redress, or preventionof a wrong, People v.
judges of a certain court sit together to decide a case, as in Barker, 29 Cal.App.2d Supp. 766, 77 P.2d 321, 323; Lee v.
the phrase "before the full bench" (also called "en banc"). Lang, 140Fla. 782, 192 So. 490, 491; Johnston v. State,212
[3]
Ind. 375, 8 N.E. 590, 592. Every action otherthan a criminal
The bench was a typical feature of the courts of the Order action, City of Neenah v. Krueger,206 Wis. 473, 240 N.W.
of St. John in Malta, such as at the Castellania, where 402, 404; Gillson v. VendomePetroleum Corporation,
judges and the nominated College of Advocates sat for D.C.La., 35 F.Supp.815, 819.
court cases and review laws.[4]
The term is used to differentiate judges ("the bench") Both actions at law and actions in equity. Kiepinger
from attorneys or barristers ("the bar"). The phrase "bench v.Rhodes, 140 F.2d 697, 698, 78 U.S.App.D.C. 340.
and bar" denotes all judges and lawyers collectively. [1]
In the Civil Law A personal action which is instituted to
compelpayment, or the doing of some other thing whichis
CIRCUMSTANTIAL EVIDENCE. The term includes all purely civil. Pothier, Introd. Gen. aux Cont.110.At Common
evidence of indirect nature. Milligan v. State, 109 Fla. 219, LawOne which seeks the establishment, recovery,or
147 So. 260, 263. redress of private and civil rights. Onebrought to recover
It is direct evidence as to facts deposed to but indirect asto some civil right, or to obtainredress for some wrong not
the factum probandum, Brown v. State, 126 Tex.Cr.R.449, being a crime or misdemeanor.Wheeling Traction Co. v.
72 S.W.2d 269, 270; evidence of facts or circumstances PennsylvaniaCo., D.C.Ohio, 1 F.2d 478, 479.
from which the existence or nonexistence of fact in issue
may be inferred. People v. Steele, 37 N.Y.S.2d 199, 200,179 Civil suits relate to and affect only individual rightswhereas
Misc. 587; Wolff v. Employers Fire Ins. Co., 282 Ky.824, 140 criminal prosecutions involve public wrongs. Cancemiv.
S.W.2d 640, 645, 130 A.L.R. 682; Scott v. State,57 Ga.App. People, 18 N.Y. 128. They include all cases, bothat law and
489, 195 S.E. 923, 924; inferences drawn from facts in equity, which cannot legally be denominated"criminal
proved, Hatfield v. Levy Bros., 18 Ca1.2d 798, 117 P.2d cases." Fenstermacher v. State, 19 Or. 504, 25P. 142;
841, 845; preponderance of probabilities, Hercules Welford v. Havard, 127 Miss. 83, 89 So. 812, 813.In Code
PowderCo., v. Nieratko, 113 N.J.L. 188, 173 A. 606, 610; PracticeThe one form of action for enforcement or
processof decision by which court or jury may reason from protection ofprivate rights and prevention or redress of
circumstances known or proved, to establish by inference private wrongs.Code N.Y. § 69. It may also be brought for
the principal fact, People v. Taddio, 292 N.Y. 488, 55 the recoveryof a penalty or forfeiture."Civil action" implies
N.E.2d 749, 750. adversary parties and an issue, andis designed for the
recovery or vindication of a civil rightor the redress of
It means that existence of principal facts is only some civil wrong. Bopst v. Williams, 287Mo. 317, 229 S.W.
inferredfrom circumstances. Twin City Fire Ins. Co. v. 796, 798. It is a generic term, and doesnot necessarily
Lonas, 255Ky. 717, 75 S.W.2d 348, 350. imply jury trial. State Board of MedicalExaminers v. Macy,
92 Wash. 614, 159 P. 801, 804
When the existence of the principal fact is deduced
fromevidentiary by a process of probable reasoning, the CIVIL LIABILITY. The amenability to civil actionas
evidenceand proof are said to be presumptive. Best, distinguished from amenability to criminalprosecution.
Pres.246; Id. 12. Corn. v. Shimpeno, 160 Pa.Super. 104,50 A.2d 39, 43. A
sum of money assessed eitheras general, special or
All presumptive evidence is circumstantial liquidated damages, eithersingle,double or treble for
becausenecessarily derived from or made up of violation such as overcharges.Lewis v. Anderson, D.C.Cal.,
circumstances,but all circumstantial evidence is not 72 F.Supp,119, 123CLASS SUIT, See Class or Representative
presumptive.Burrill.The proof of various facts or Action,
circumstances which usuallyattend the main fact in
dispute, and therefore tend toprove its existence, or to CLASS or REPRESENTATIVE ACTION. One inwhich one or
sustain, by their consistency, thehypothesis claimed. Or as more members of a class sue eitherfor themselves or for
otherwise defined, it consists inreasoning from facts which themselves and other membersof a class. Huester v.
Gilmour, D.C.Pa., 13 F.Supp. 630, 631; City of Dallas v.
Armour & Co.,Tex.Civ.App., 216 S.W. 222, 224. The plaintiff relates, he may, in addition to his answer,file at the same
in arepresentative action before judgment is, as arule, time, or by permission of the courtsubsequently, a cross-
dominos litis, (q. v.,) and may discontinue orcompromise complaint.' The cross-complaint mustbe served upon the
the action as he pleases. Sweet. parties affected thereby, and such partiesmay demur or
answer thereto as to the original complaint.Standley v.
CLEAN HANDS. Equitable relief may be deniedon ground of Insurance Co., 95 Ind. 254; Harrisonv. McCormick, 69 Cal.
deceit or impurity of motive, O'Brienv. Hamill, 264 N.Y.S. 616, 11 P. 456; Bank v. Ridpath, 29Wash. 687, 70 P. 139.
557, 147 Misc. 709; fraud orwilful misconduct, Eresch v. This is allowed when a defendant hasa cause of action
Braecklein, C.C.A.Kan., 133 F.2d 12, 14; Margolis v. Burke, against a co-defendant, or a person not aparty to the
Sup., 53N.Y.S.2d 157, 161, 162; unjust and unfair action, and affecting the subject-matter of theaction. The
conduct,Dutch Maid Bakeries v. Schleicher, 58 Wyo. only real difference between a complaint anda cross-
374,131 P.2d 630, 634; unlawful or inequitable complaint is that the first is filed by the plaintiffand the
conduct,Rhodes v. Miller, 179 So. 430, 432, 189 La. second by the defendant. Both contain a statementof the
288;Lodati v. Lodati, 52 N.Y.S.2d 119, 120, 268 App.Div. facts, and each demands affirmative relief uponthe facts
1003; wrongdoing, Dales v. Muir, 351 Pa.187, 40 A.2d 476, stated. The difference between a counter-claimand a
477. cross-complaint is that in the former the defendant'scause
of action is against the plaintiff; and the latter,against a co-
The maxim is confined to misconduct in relation to defendant, or one not a party to the action;White v.
orconnected with the matter in litigation. Teuscher Reagan, 32 Ark. 290.
v.Grogg, 136 Okl. 129, 276 P. 753, 760, 66 A.L.R. 143;
Hartmanv. Cohn, 350 Pa. 41, 38 A.2d 22, 25. It is In criminal law. A charge, preferred beforea magistrate
inapplicablewhere to withhold relief would offend public having jurisdiction, that a person named (or an unknown
morals morethan to grant relief, Furman v. Furman, 34 person) has committed aspecified offense, with an offer to
N.Y.S.2d 699, 704, 178 Misc. 582; and where result will be prove the fact,to the end that a prosecution may be
to leave propertyin hands of one having no claim thereto instituted.It is a technical term, descriptive of
or requirefurther litigation, Harrell v. Allen, 183 Va. 722, 33 proceedingsbefore a magistrate. Hobbs v. Hill, 157 Mass.
S.E.2d222, 226. The act must prejudicially affect 556,32 N.E. 862; In some instances "complaint" is
defendant,Wiley v. Wiley, 59 Cal.App.2d 840, 139 P.2d interchangeablewith "information." State v. Stafford,26
950, 951. But'it has been held that application of maxim is Idaho, 381, 143 P. 528, 530; State v. Ritzier,17 Ohio App.
not limited toa case where the iniquitous action is one of 394, 395. And is often used interchangeablywith
which the movingparty may personally complain. Leo "affidavit." Hebebrand v.State, 129 Ohio St. 574, 196 N.E.
Feist, Inc. v.Young, D.C.Wis., 46 F.Supp. 622, 628. 412, 415.

COMPLAINT. In civil practice. In those stateshaving a Code CONCLUSIVE PRESUMPTIONCONCLUSIVE. Shutting up a

of Civil Procedure, the complaintis the first or initiatory matter; shuttingout all further evidence; not admitting of
pleading on the part ofthe plaintiff in a civil action. It explanationor contradiction; putting an end to
corresponds tothe declaration in the common-law inquiry;final; irrefutable; decisive. Edwards v.
practice. CodeN.Y. Åò 141; McMath v. Parsons, 26 Minn. ShreveportCreosoting Co., 207 La. 699, 21 So.2d
246, 2N.W. 703. Its purpose is to give defendant 878.Beyond question or beyond dispute; manifest;plain;
informationof all material facts on which plaintiff reliesto clear; obvious; visible; apparent; indubitable;palpable; and
support his demand. Fox v. Cosgriff, 64Idaho 448, 133 P.2d "notorious." CovingtonCounty v. Fite, 120 Miss. 421, 82 So.
930, 932, 308, 309.As to conclusive "Presumption," and "Proof,"see
those titles.
The complaint shall contain : (1) The title of the
cause,specifying the name of the court in which the action CONFESSION AND AVOIDANCE. A plea in confessionand
isbrought, the name of the county in which the trial is avoidance is one which avows andconfesses the truth of
requiredto be had, and the names of the parties to the the averments of fact in thedeclaration, either expressly or
action,plaintiff and defendant. (2) A plain and by implication, butthen proceeds to allege new matter
concisestatement of the facts constituting a cause of which tendsto deprive the facts admitted of their
action, withoutunnecessary repetition; and each material ordinarylegal effect, or to obviate, neutralize, or
allegationshall be distinctly numbered. (3) A demand of avoidthem. Bavarian Brewing Co. v. Retkowski, 113 A.903,
the reliefto which the plaintiff supposes himself entitled. If 907, 1 W.W.Flarr. (Del.) 225; Brown v. Jones,137 Or. 520, 3
therecovery of money be demanded, the amount thereof P.2d 768, 769.
mustbe stated. Code N.C.1883, Åò 233 (C.S. Åò 506).Cross-
complaint. In code practice. Whenever the defendantseeks CONTEMPT OF COURT. Any act which is calculatedto
affirmative relief against any party, relatingto or depending embarrass, hinder, or obstruct court inadministration of
upon the contract or transaction uponwhich the action is justice, or which is calculatedto lessen its authority or its
brought, or affecting the property towhich the action dignity. Ex parteHobrook, 133 Me. 276, 177 A. 418, 420.
Committedby a person who does any act in willful punishment is known as a "criminal action."Pen.Code Cal.
contraventionof its authority or dignity, or tendingto Åò 683. A criminal action is (1) anaction prosecuted by the
impede or frustrate the administration of justice,or by one state as a party, againsta person charged with a public
who, being under the court's authorityas a party to a offense, for thepunishment thereof ; (2) an action
proceeding therein, willfullydisobeys its lawful orders or prosecuted bythe state, at the instance of an individual, to
fails to complywith an undertaking which he has preventan apprehended crime, against his personor
given.Snow v. Hawkes, 183 N.C. 365, 111 S.E. 621, 622,23 property. Code N.C. 1883, Åò 129, C.S. Åò 395.
A.L.R. 183.ClassificationContempts are of two kinds, direct
and constructive.Direct contempts are those committed in CRIMINAL LIABILITY criminal liability or prosecution from a
theimmediate view and presence of the court (suchas civil one.
insulting language or acts of violence) or sonear the
presence of the court as to obstruct orinterrupt the due CULPA AQUILANA
and orderly course of proceedings.These are punishable Quasi-delicts (Culpa aquiliana) is an act or omission which
summarily. Theyare also called "criminal" contempts, but causes damages to another, there being fault or
thatterm is better used in contrast with "civil" negligence and there being no pre-existing contractual
contempts.See infra. State v. McClaugherty, 33W.Va. 250, relationship between the parties
10 S.E. 407. Pelletier v. Glacier County,Mont., 107 Mont.
221, 82 P.2d 595, 597.
CULPA CONTRACTUAL
Constructive (or indirect) contempts are thosewhich arise Fault signifies voluntary act or omission causing damages
from matters not occurring in or nearthe presence of the to the right of another giving rise to an obligation of the
court, but which tend to obstructor defeat the actor to repair such damage. ... Fault as an incident in the
administration of justice,and the term is chiefly used with performance of an obligation existing – is known
reference to thefailure or refusal of a party to obey a as contractual fault or culpa contractual governed by Art.
lawful order,injunction, or decree of the court laying 1170-73 of NCC.
uponhim a duty of action or forbearance. Maryott
v.Maryott, 124 Neb. 274, 246 N.W. 343.
CUSTODIA LEGIS. In the custody of the law.Stockwell v.
Constructive contempts were formerly called Robinson, 9 Houst., Del., 313, 32 A.528; Troll v. City of St.
"consequential,"and this term is still in occasional Louis, 257 Mo. 626, 168S.W. 167, 178; Hopping v.
use.Contempts are also classed as civil or criminal.The Hopping, 233 Iowa 993,10 N.W.2d 87, 152 A.L.R. 436.
former are those quasi contempts whichconsists in the
failure to do something which theparty is ordered by the DECISION. A popular rather than technical or legal word; a
court to do for the benefitor advantage of another party to comprehensive term having no fixed,legal meaning. It may
the proceedingbefore the court, while criminal contempts be employed as referring to ministerial acts as well as to
are acts done in disrespect of the court or itsprocess or those that are judicial or of a judicial character, Palmer
which obstruct the administration ofjustice or tend to Pub. Co.v. Smith, 130 Tex. 346, 109 S.W.2d 158, 159; such
bring the court into disrespect.A civil contempt is not an as decision of architects, Independent School Dist. No. 35,
offense against the dignityof the court, but against the St. Louis County, v. A. Hedenberg& Co., 214 Minn. 82, 7
party in whosebehalf the mandate of the court was issued, N.W.2d 511, 515; of county commissioners, Houser v.
anda fine is imposed for his indemnity. But Olmstead, 57 S.D. 41, 230 N.W. 224, 225; or of industrial
criminalcontempts are offenses or injuries offered to commission, Rosenquist v. O'Neil & Preston, 187 Minn.
thecourt, and a fine or imprisonment is imposed uponthe 375,245 N.W. 621.A judgment or decree pronounced by a
contemnor for the purpose of punishment.Staley v. South court in settlement of a controversy submitted to it and by
Jersey Realty Co., 90 A. 1042, 1043,83 N.J.Eq. 300, way of authoritative answer to the questions raised before
L.R.A.1917B, 113, Ann.Cas.1916E,955; Fenton v. Walling, it. Adams v. Railroad Co., 77 Miss.194, 24 So. 317, 60 L.R.A.
C.C.A.Cal., 139 F.2d 608,609. 33; Board of Education. State, 7 Kan.App. 620, 52 P. 466.A
judgment given by a competent' tribunal. Eastman Kodak
COST OF SUIT Co. v. Richards, 123 Misc. 83, 204N.Y.S. 246, 248.
the expenses incurred in relation to a legal action that may
be awarded by the court, usually (although not always) to The findings of fact and conclusions of law which must be
the party who wins. Collins Dictionary of Law © W.J. in writing and filed with the clerk. Stewart Mining Co. v.
Stewart, 2006. COSTS, practice. The expenses of a suit or Ontario Mining Co., 23Idaho, 724, 132 P. 787, 791; Wilcox
action which may be recovered by law from the losing v. Sway, 69Cal.App.2d 141, 160 P.2d 154, 156.A finding, as
party. 2. by a court, upon either a question of law or fact arising in a
case. Vermont Marble Co. v. Eastman, 91Vt. 425, 101 A.
Criminal action The proceeding by which a party charged 151, 160. The court's finding or findings. Volderauer v.
witha public offense is accused and brought to trialand State, 195 Ind. 415, 143 N.E. 674, 676;Chambers v.
Farnham, 39 Cal.App. 17, 179 P. 423, 424.A determination profession, Hilkert v. Canning, 58 Ariz.290, 119 P.2d 233,
of a judicial or quasi judicial nature. Codington County v. 236, In Practice Omission; neglect or failure of any party to
Board of Com'rs ofCodington County, 51 S.D. 131, 212 takestep required of him in progress of cause. Indiana
N.W. 626, 628.Statement by trial justice after trial before State Board of Medical Registration and Examination v.
court withoutjury does not constitute "decision." Shaul v. Pickard, 93 Ind.App. 171, 177 N.E.870, 872.
Fidelity& Deposit Co. of Maryland, 131 Misc. 401, 227
N.Y.S. 163,1.68. A "decision" involves reaching a When a defendant in an action at lawomits to plead within
conclusion. Lambrosv. Young, 145 F.2d 341, 343, 79 the time allowed him for that purpose, or fails to appear
U.S.App.D.C. 247. on the trial, he issaid to make default, McCabe v. Tom, 35
OhioApp. 73, 171 N.E. 868, 869, and the judgment
The term is broad enough to cover both final enteredin the former case is technically called a "judgment
judgmentsand interlocutory orders. Stout v. Stout, 68 by default." 3 Bl.Comm. 396; 1 Tidd,Pr. 562.
Ind.App. 278,131 N.E. 245, 246. And though sometimes
limited to thesense of judgment; Industrial Commission of A "default" in an action at law is somewhat similar tothe
Ohio v. Musselli,102 Ohio St. 10, 130 N.E. 32, 33; the term entry of a decree in equity that the bill be taken
is at other times understood as meaning simply the first forconfessed, neither being a final disposition. Felton
step leading to a judgment; Dorney v. Ives, 36 R.I. 276, 90 v.Felton, 128 Conn. 564, 196 A. 791, 793
A. 164, 165;or as an order for judgment; Collins v. Belland,
37 Cal.App. 139, 173 P. 601, 602. The word may also .In General Default of issue. Failure to have living children
include various rulings, as well as orders. U. S. v. or descendants at a given time or fixed point.George v.
Thompson, 251 U.S. 407, 40 S.Ct. 289, 291, 64 L.Ed. 333; Morgan, 16 Pa. 106; In re Van Cleef,92 Misc. 689, 157
Marr v. Marr, 194Cal. 332, 228 P. 534, 535. N.Y.S. 549, 551.Defaulter. One who makes default. One
whom is appropriates money held by him in an officialor
The words "decision" and judgment" may be used fiduciary character, or fails to account for suchmoney.
interchangeably,but in the abstract there is a shade of Judgment by default. See Judgment.
differencebetween the two. Smith v. State, 196 Ga. 595,
27S.E.2d 369, 373."Decision" is not necessarily DISPOSITIVE PORTION
synonymous with "opinion."A decision of the court is its Dispositive Definition: A fact or point of law which brings
judgment; the opinionis the reasons given for that about the settlement of a contested issue. Shumaker, in
judgment, or the expressionof the views of the judge. reference only to dispositive facts, writes:
Craig v. Bennett, 158 Ind.9, 62 N.E. 273; But the two words "DISPOSITIVE FACTS. Such as originate, transfer, or
are sometimes used interchangeably. Pierce v. State, 109 extinguish rights, known respectively as investitive,
Ind. 535, 10 N.E. 302;Keller v. Summers, 262 Mo. 324, 171 translative, and divestitive facts."
S.W. 336, 337.The French lawyers call the opinions which
they giveon questions propounded to them, decisions. See DISPUTABLE PRESUMPTION. A species of evidence that
Inst. 1, 2, 8; Dig. 1, 2, 2. may be accepted and acted upon when there is no other
evidence to uphold contention for which it stands; and
DECLARATORY RELIEF when evidence is introduced supporting such contention,
refers to a judgment of a court which determines the evidence takes place of presumption, and there is no
rights of parties without ordering anything be done or necessity for indulging in any presumption. Noble v. Key
awarding damages. By seeking a declaratory judgment, System, 10 Cal.App.2d 132, 51 P.2d 887, 889.A rule of law
the party making the request is seeking for an official to be laid down by the court, which shifts to the party
declaration of the status of a matter in controversy. against whom it operates the burden of evidence merely.
City of Montpelier v. Town of Calais, 114 Vt. 5, 39 A.2d350,
356. See Presumptions.
DEFAULT. By its derivation, a failure. Meadowsv.
Continental Assur. Co., C.C.A.Tex., 89 F.2d 256. An Dissenting Opinion The opinion in which a judge
omission of that which ought to be done. Town of Milton announces his dissent from
v. Bruso, 111 Vt. 82, 10 A.2d 203, 205. Specifically, the the conclusions held by the majority of the court, and
omission or failure to perform a legal duty. Easterwood v. expounds his own views.
Willingham,Tex.Civ.App., 47 S.W.2d 393, 395; to observea
promise or discharge an obligation, Bradbury v.Thomas, 27 ENTRY OF JUDGMENT. See Entering Judgment. ENTERING
P.2d 402, 135 Cal.App. 435; or to performan agreement, JUDGMENTS. The formal entry of the judgment on the rolls
Eastman v. Morgan, D.C.N.Y.,43 F.Supp. 637, 641. The of the court, which is necessary before bringing an appeal
term also embraces theidea of dishonesty, In re State, 210 or an action on the judgment. Blatchford v. Newberry,
Wis. 9, 245 N.W. 844, 845, and of wrongful act, Greco v. S. 100Ill. 491. The entering of judgment is a ministerial act
S.Kresge Co., 277 N.Y. 26, 12 N.E.2d 557, 562, 115A.L.R. performed by the clerk of court by means of which
1020; or an act or omission discreditable to one's permanent evidence of judicial act in rendering judgment
is made a record of the court. Jones v. Sun Oil Co., thedebt is intended to be procured by this process; the
Tex.Civ.App., 145 S.W.2d615, 619. Under some statutes, latter,where the execution is only a means to an end, as
the entering consists merely in the filing of a judgment wherethe defendant is arrested on ca. sa.
with the clerk; Mathison v. Anderson, 107 Wash. 617,
182P. 622. But under other acts, the entry of a judgment The word cannot be stretched to include prescription;the
consists in the recording of it in the judgment book. Wilson natural meaning of "execution" is "performance,"
v. Durkee, 20 Cal.App. 492,129 P. 617, 618. includingexcuses for performance. Wood & Selick v.
CompagnieGenerale Transatlantique, C.C.A.N.Y., 43 F.2d
Entry of judgment differs from rendition of judgment. 941,942.
"Rendition" of a judgment is the judicial act of the court in
pronouncing the sentence of the law upon the facts in Where testatrix left residue of her estate to be divided
controversy. The"entry" is a ministerial act, which consists equally among named individuals, but provided that, if any
in spreading upon the record a statement of the final of those beneficiaries should be deceased at time of
conclusion reached by the court in the matter, thus "execution"of the will, their share "is" to revert to
furnishing external and incontestable evidence ofthe testatrix'estate, the word "execution" had reference to
sentence given, and designed to stand as a perpetual time whenwill should take effect and not to time when will
memorial of its action. Jaqua v. Harkens,40 Ind.App. 639, wassigned. Central Nat. Bank v. Stevenson, 25 Del.Ch.
82 N.E. 920, 922; Beetchenowv. Bartholet, 162 Wash. 119, 215,16 A.2d 114, 115.
298 P. 335,336.
Writ of assistance is in the nature of an "execution."Davis
EX PARTE. On one side only; by or for one party; done for, v. Federal Land Bank of Columbia, 217 N.C. 145,7 S.E.2d
in behalf of, or on the application of, one party only. 373, 376.

A judicial proceeding, order, injunction, etc., is said to beex Attachment distinguished Term "executions" as used in
parte when it is taken or granted at the instance and Code section dealing withcommissions which sheriff may
forthe benefit of one party only, and without notice to, charge in cases wheresheriff has collected a judgment on
orcontestation by, any person adversely interested. Janin execution without makinga sale of the judgment debtor's
v.Logan, 209 Ky. 811, 273 S.W. 531, 532; Van Alen v. property is sufficientlybroad to include attachment, Jones-
SuperiorCourt in and for Los Angeles County, 37 Cal.App. Noland Drilling Co. v.Bixby, 34 N.M. 413, 282 P. 382.
696,174 P. 672; Stella v. Mosele, 299 53, 19 N.E.2d 384.Under an attachment, property of defendant is
433,435.In its primary sense, ex parte, as applied to an placedin custody of law to await final determination of
applicationin a judicial proceeding, means that it is made suit, andthe attachment is really a preliminary execution
by aperson who is not a party to the proceeding, but who dependentfor its ultimate efficacy upon the rendering of a
hasan interest in the matter which entitles him to make judgmentin plaintiff's favor; on the other hand, an
theapplication. Thus, in a bankruptcy proceeding or "execution"is a remedy afforded by 4.w for the
anadministration action, an application by A. B., a enforcement ofa judgment of the court. J. M. Radford
creditor,or the like, would be described as made "ex parte Grocery Co. v.Owenby, Tex.Civ.App., 34 S.W.2d 385, 387.
A. B.,"e., on the part of A. B.In its more usual sense, ex
parte means that an applicationis made by one party to a Criminal LawThe carrying into effect of the sentence of the
proceeding in the absenceof the other. Thus, an ex parte law by theinfliction of capital punishment. 4 BI.Comm. 403;
injunction is one grantedwithout the opposite party having 4 Steph.Comm. 470.
had notice of the application.It would not be called "ex
parte" if he had propernotice of it, and chose not to
appear to oppose it. Sweet."Ex parte," in the heading of a French LawA method of obtaining satisfaction of a debt or
reported case,signifies that the name following is that of claim bysale of the debtor's property privately, ti. e.,
theparty upon whose application the case is heard. without judicialprocess, authorized by the deed or
agreement of theparties or by custom; as, in the case of a
EXECUTION. Carrying out some act or courseof conduct to stockbroker, whomay sell securities of his customer,
its completion. Northwest SteelRolling Mills v. bought under his instructionsor deposited by him, to
Commissioner of Internal Revenue,C.C.A.9, 110 F.2d 286, indemnify himself ormake good a debt. Arg.Fr.Merc.Law,
290. Completion of anact. Domestic Finance Corporation v. 557.
Williams,174 Misc. 227, 20 N.Y.S.2d 467, 469. Putting
intoforce, Greene v. Wheeler, C.C.A.Wis., 29 F.2d468, 469.
The completion, fulfillment, or perfectingof anything, or GarnishmentExecution includes writ of garnishment.
carrying it into operation andeffect. Buckley v. F.L. Riley Mercantile Co., 155 Miss. 150, 124 So.
267.Garnishee execution is an execution against
At common law, executions are said to be either final property.In re Howard Hotel Corporation, 150 Misc. 782,
orquousque; the former, where complete satisfaction of 270 N.Y.S.259.
 HEARSAY. Evidence not proceeding from thepersonal
Garnishment after judgment "is execution" within knowledge of the witness, but from themere repetition of
statuteproviding that execution , shall only be issued what he has heard others say.That which does not derive
fromcourt in which judgment is rendered. Though a its value solely fromthe credit of the witness, but rests
garnishmentis not an execution, garnishment after mainly on theveracity and competency of other persons.
execution ispractically an equitable execution. First Nat. Thevery nature of the evidence shows its weakness,and it
Bank ofCordell v. City Guaranty Bank of Hobart, 174 Okl. is admitted only in specified cases from necessity.State v.
545, 51P.2d 573, 576. Ah Lee, 18 Or. 540, 23 P. 424, 425.Young v. Stewart, 191
N.C. 297, 131 S.E. 735, 737.
Order of Sale"Execution" in statute includes an order of
sale. BartlettMortg. Co. v. Morrison, 183 Okl. 214, 81 P.2d It is second-hand evidence, as distinguished from
318, 322;Blanscet v. Palo Duro Furniture Co., Tex.Civ.App., originalevidence; it is the repetition at second-hand of
68 S.W.2d 527, 528. what wouldbe original evidence if given by the person who
originallymade the statement. Literally, it is what the
PracticeThe name of a writ issued to a sheriff, constable, witness sayshe heard another person say. Stockton v.
ormarshal, authorizing and requiring him to execute Williams, 1Doug., Mich., 546, 570 (citing 1 Starkie, Ev.
thejudgment of the court. Raulerson v. Peeples, 81 Fla. 229). Evidence,oral or written, is hearsay when its
206,87 So. 629, 630. probative force dependsin whole or in part on the
competency and credibility of aperson other than the
For "Attachment execution," see Attachment.For "Body witness. State v. Kluttz, 206 N.C.726, 804, 175 S.E. 81.
Execution," "Dormant Execution,""Equitable Execution," Hearsay is a statement made by aperson not called as a
"General Execution,""Junior Execution" and "Special witness, received in evidence on thetrial. People v. Kraft,
Execution," seethose titles.For "Execution of Judgment or 36 N.Y.S. 1034, 1035, 91 Hun, 474.The term is sometimes
Decree," seethat title.For "Testatum execution," see used synonymously with "report",State v. Vettere, 76
Testatum. Mont 574, 248 P. 179, 183; and with"rumor".

EXHAUSTION OF ADMINISTRATIVE REMEDIES.The doctrine IMPLEADED. Sued or prosecuted; used particularlyin the
is that, where an administrativeremedy is provided by titles of causes where there are severaldefendants; as "A.
statute, relief must besought from administrative body B., impleaded with C. D."
and such remedyexhausted before courts will act.
Abelleirav. District Court of Appeal, Third Dist., 17 IN PARI MATERIA. Upon the same matter orsubject.
Ca1.2d280, 109 P.2d 942, 949, 132 A.L.R. 715; Hill v. Statutes in pari materia are to be construedtogether. State
Brisbane,66 Cal.App.2d 15, 151 P.2d 578, 582. v. Gerhardt, 145 Ind. 439,44 N.E. 469, 33 L.R.A. 313.

FALLO. In Spanish law. The final decree or judgment given IN RE. In the affair; in the matter of; concerning;re. This is
in a controversy at law. the usual method of entitling ajudicial proceeding in which
there are not adversaryparties, but merely some res
FINAL DETERMINATION. Final judgment is synonymous. concerningwhich judicial action is to be taken, such as
The final settling of the rights ofthe parties to the action abankrupt's estate, an estate in the probate court,a
beyond all appeal. Quarture.v. Allegheny County, 141 proposed public highway, etc. It is also sometimesused as
Pa.Super. 356, 14A.2d 575, 578. See Judgment. a designation of a proceeding whereone party makes an
application on his own behalf,but such proceedings are
FINAL ORDER One which either terminates the action more usually entitled"Ex parte ."
itself, or decides some matter litigated by the parties, or
operates to divest some right; or one which completely IPSO FACTO. By the fact itself; by the merefact. By the
disposes of the subject-matter mere effect of an act or a fact. BarberAsphalt Paving Co. v.
and the rights of the parties. Salem King's Products Co. v. Hayward, 248 Mo. 280,154 S.W. 140, 141.
La Follette, 100 Or. 11, 196 P. 416, 417; Stockham v.
Knollenberg, 133 Md. 337, 105 A. 305, 307; Marchant & In English ecclesiastical law. A censure of
Taylor v. Mathews County, 139 Va. 723, 124 S.E. 420, 423. excommunicationin the ecclesiastical court, immediately
incurred fordivers offenses, after lawful trial.
FORUM SHOPPING
is a practice adopted by litigants to get their cases heard in
a particular court that is likely to provide a favorable IPSO JURE. By the law itself; by the mere operation of law.
judgment. Foreign litigants are attracted to the U.S. Calvin.
because of its wide acceptance of personal jurisdiction and
favorable litigation environment. Joinder of actions. This expression signifies theuniting of
two or more demands or rights of actionin one action; the
statement of more thanone cause of action in a be brought within the realm of judicial notice;in general, it
declaration. Sickler v.City of Broken Bow, 143 Neb. 542, 10 covers matters so notorious that a productionof evidence
N.W.2d 462,464. would be unnecessary, matters which the judicialfunction
supposes the judge to be acquainted withactually or
JUDGMENT. A sense of knowledge sufficient theoretically, and matters not strictly includedunder either
tocomprehend nature of transaction. Thomas v.Young, 57 of such heads. Gottstein v. Lister, 88 Wash.462, 153 P. 595,
App.D.C. 282, 22 F.2d 588, 590.An opinion or estimate. 602, Ann.Cas.1917D, 1008.
McClung Const. Co. v.Muncy, Tex.Civ.App., 65 S.W.2d 786,
790.The conclusion in a syllogism having for its major and JUDICIAL REVIEW
minor premises issues raised by thepleadings and the review by the US Supreme Court of the constitutional
proofs thereon. Barlow v.Scott, Mo.Sup., 85. S.W.2d 504, validity of a legislative act.
517.The formation of an opinion or notion concerning
some thing by exercising the mind upon it.
JURIDICAL CAPACITY
JUDICIAL ADMISSION. See Admissions. Judicial admissions which is the fitness to be the subject of legal relations, is
are those made in court by a person's attorney for the inherent in every natural person and is lost only through
purpose of being used as a substitute for the regular legal death. Capacity to act, which is the power to do acts with
evidence of the facts at the trial. Martin v. State, 46 Okl.Cr. legal effect, is acquired and may be lost
411, 287 P. 424. Such as are made voluntarily by a party,
which appear of record in the proceedings of the court. JURISDICTION. The word is a term of largeand
Formal acts done by a party or his attorney in court on the comprehensive import, and embraces everykind of judicial
trial of a cause for the purpose of dispensing with proof by action. Federal Land Bank ofLouisville, Ky., v. Crombie, 258
the opposing party of some fact claimed by the latter to be Ky. 383, 80 S.W.2d39, 40; McGowin v. McGowin, 122 Fla.
true. Wiley v. Rutland R. Co., 86 Vt. 504, 86 A. 808, 810. 394, 165So. 274, 275, 276. It is the authority by
Concession by defendant that she had executed a bill of whichcourts and judicial officers take cognizance of
sale for the automobile to intervener to secure an anddecide cases. Board of Trustees of Firemen's Reliefand
indebtedness was an "admission in judicio" by defendant Pension Fund of City of Marietta v.Brooks, 179 Okl. 600, 67
against her title to the automobile. McDay v. Long, 63 P.2d 4, 6; Morrow v. Corbin,122 Tex. 553, 62 S.W.2d 641;
Ga.App. 421, 11 S.E.2d 395, 399. But opening statements State v. Barnett,110 Vt. 221, 3 A.2d 521, 526; the legal
of counsel are not, technically, "admissions." Wilkey v. right bywhich judges exercise their authority. Max
State ex rel. Smith, 238 Ala. 595, 192 So. 588, 591. See Ams,Inc. v. Barker, 293 Ky. 698, 170 S.W.2d 45, 48; Itexists
Acquiescence; Quasi Admissions; True Admission. when court has cognizance of class of casesinvolved,
proper parties are present, and point tobe decided is
JUDICIAL NOTICE. The act by which a court,in conducting a within issues. Noxon Chemical ProductsCo. v. Leckie,
trial, or framing its decision, will,of its own motion, and C.C.A.N.J., 39 F.2d 318, 319;United Cemeteries Co. v.
without the production ofevidence, recognize the Strother, 342 Mo. 1155,119 S.W.2d 762, 765;
existence and truth ofcertain facts, having a bearing on the
controversyat bar, which, from their nature, are not JUSTICIABLE. Proper to be examined in courtsof justice.
properlythe subject of testimony, or which are subject to action of court of justice.International Harvest
universallyregarded as established by common notoriety,e. Hat Co. v. Caradine HatCo., D.C.Mo., 17 F.Supp. 79, 80.
g., the laws of the state, international law, historicalevents,
the constitution and course of nature,main geographical LAW OF THE CASE DOCTRINE LAW OF THE CASE. The
features, etc. NorthHempstead v. Gregory, 53 App.Div. decision, judgment,opinion or rulings on former appeal or
350, 65 N.Y.S.867; State v. Main, 69 Conn. 123, 37 A. 80, writ of errorbecome "law of the case."
36 L.R.A. 623, 61 Am.St.Rep. 30. MassachusettsBonding & Insurance Co. v. Bankers' Surety
Co.,96 Ind.App. 250, 179 N.E. 329, 332; City of
The cognizance of certainfacts which judges and jurors Shreveportv. Kansas City Southern Ry. Co., 193 La. 277,190
may properlytake and act upon without proof, because So. 404, 406; Nolan v. Nolan's Adm'rs, 234 Ky.50, 27
they alreadyknow them. United States v. Hammers, S.W.2d 408, 409; Machenheimer v. Falknor,151 Wash. 447,
D.C.Fla., 241 F. 542, 543. 276 P. 297, 298; Tressler Coal Min.Co. v. Klefeld, 125 W.Va.
301, 24 S.E.2d 98, 100; so,too, a holding of an appellate
The true conception of what is "judicially known" isthat of court on writ of certiorari.Goodkind v. Wolkowsky, 147 Fla.
something which is not, or rather need not be,unless the 415, 2Scii2d 723, 725; Atlantic Coast Line R. Co. v.
tribunal wishes it, the subject of either evidenceor SperryFlour Co., 63 Ga.App. 611, 11 S.E.2d 809,
argument. Chiulla de Luca v. Board of Park Com'rs ofCity of 811;binding on subsequent appeal or writ of error.George
Hartford, 94 Conn. 7, 107 A. 611, 612. The limits of"judicial v. Atlanta & C. A. L. Ry. Co., 210 N.C. 58, 185 S.E. 431, 432;
notice" cannot be prescribed with exactness, butnotoriety Elliott v. Moffet, Tex.Civ.App.,165 S.W.2d 911, 912, 913;
is, generally speaking, the ultimate test of factssought to Moran v. Lecconv SmokelessCoal Co., 124 W.Va. 54, 18
S.E.2d 808, 813;Hill v. Chappel Bros. of Montana, 97 Mont. restoration of the complainant to rightsor privileges of
305,33 P.2d 819, 820; or on subsequent proceedings which he has been illegally deprived.Lahiff v. St. Joseph,
ortrials in trial court, Oliver v. Muncy, 271 Ky. 15,111 etc., Soc., 76 Conn.648, 57 A. 692, 65 L.R.A. 92, 100
S.W.2d 392, 393; Sarson v. Mueller, 105 N.J.L.212, 143 A. Am.St.Rep. 1012.
428; State of Kansas ex rel. Beck v.Occidental Life Ins. Co.,
C.C.A.Kan., 95 F.2d 935,936; or in subsequent suit between MITTIMUS. Criminal practice. The name of aprecept in
same parties,Oglethorpe University v. City of Atlanta, 180 writing, issuing from a court or magistrate,directed to the
Ga.152, 178 s.a 156.The doctrine expresses practice of sheriff or other officer, commandinghim to convey to the
courts generallyto refuse to reopen what has been prison the personnamed therein, and to the jailer,
decided.White v. Higgins, C.C.A.Mass., 116 F.2d 312, commanding himto receive and safely keep such person
317,318; Perkins v. Vermont Hydro-Electric until heshall be delivered by due course of law. Pub.
Corporation,106 Vt. 367, 177 A. 631, 653; Fleming v. St.Mass. 1882, p. 1293. Connolly v. Anderson, 112Mass.
Campbell,148 Kan. 516, 83 P.2d 708, 709; it expressesthe 62; Saunders v. U. S., D.C.Me., 73 F. 786.Transcript of
rule that final judgment of highest court isfinal minutes of conviction and sentenceduly certified by court
determination of parties' rights. Atchison,T. & S. F. Ry. Co. clerk. United States ex rel.Chasteen v. Denemark,
v. Railroad Commission of California,209 Cal. 460, 288 P. C.C.A.I11., 138 F.2d 289, 291.Old English law. A writ
775, 779. enclosing a record sentto be tried in a county palatine; it
derives itsname from the Latin word mittimus, "we
LEX LOCI. The law of the place. This may beof several send."It is the jury process of these counties, and
descriptions but, in general, lex lociis only used for lex loci commandsthe proper officer of the county palatine
contractus. tocommand the sheriff to summon the jury for the trial of
the cause, and to return the record, etc.Territory v.
The "lex loci" furnishes the standard of conduct, Russv. Hattick, 2 Mart. 0. S., La., 88.MIXED. Formed by admixture
Atlantic Coast Line R. Co., 220 N. C. 715, 18 S.E.2d 130,131; or commingling;partaking of the nature, character, or legal
it governs as to all matters going to the basis of theright of attributesof two or more distinct kinds or classes.As to
action itself, State of Maryland, for Use of Joynes,v. Coard, mixed "Action," "Blood," "Contract,""Government," "Jury,"
175 Va. 571, 9 S.E.2d 454, 458.The substantive rights of "Larceny," "Marriage,""Nuisance," "Policy,"
parties to action are governedby "lex loci" or law of place "Presumption," "Property,""Tithes," and "War," see those
where rights were acquiredor liabilities incurred. Sullivan titles.
v. McFetridge, Sup., 55 N.Y.S.2d 511, 516; Gray v. Blight,
C.C.A.Colo., 112 F.2d 696,699. MOTION. Parliamentary law. The formal modein which a
member submits a proposed measureor resolve for the
LIS MOTA. A controversy moved or begun. By this term is consideration and action of themeeting.Practice. Primarily
meant a dispute which has arisen upon apoint or question an application for a rule ororder made viva voce to a court
which afterwards forms the issue uponwhich legal or judge, but theterm is generally employed with
proceedings are instituted. Westfelt v. Adams,131 N.C. reference to allsuch applications, whether written or oral.
379, 42 S.E. 823. After such controversy has arisen, (post Irwinv. Gilson Realty Co., 117 Fla. 394, 158 So. 77.Special
litem motam,) it is held, declarations as topedigree, made motion. A motion addressed to the discretionof the court,
by members of the family since deceased,are not and which must be heard anddetermined; as distinguished
admissible. See 4 Camp. 417; 6 Car. & P. 560. from one which maybe granted of course. Merchants'
Bank v. Crysler,Mo., 14 C.C.A. 444, 67 F. 390.
MAJORITY DECISION
 is a judicial opinion agreed to by more than half of the MOTU PROPRIO. Lat. Of his own motion. The commencing
members of a court. A majority opinion sets forth words of a certain kind of papal rescript.
the decision of the court and an explanation of the
rationale behind the court's decision. ... Normally, NECESSARY PARTY
appellate courts (or panels) are staffed with an odd is a person or entity whose interests are at stake in the
number of judges to avoid a tie. outcome of a lawsuit, whose absence as a party in the suit
prevents a judgment on all issues, but who cannot be
joined in the lawsuit because that would deny jurisdiction
MANDAMUS. Lat. We command. This is thename of a writ to the particular court. A necessary party who is not in the
(formerly a high prerogative writ)which issues from a court suit differs from an "indispensable party," who must be
of superior jurisdiction,and is directed to a private or joined if the lawsuit is to proceed, and from a "proper
municipal corporation,or any of its officers, or to an party," who could be joined but is not essential.
executive, administrativeor judicial officer, or to an
inferiorcourt, commanding the performance of a There are generally three ways that someone can be a
particularact therein specified, and belonging to his ortheir necessary party:
public, official, or ministerial duty, or directingthe
in the absence of the party complete relief cannot be OBITER DICTUM. Words of a prior opinion
provided to existing parties entirelyunnecessary for the decision of the case.Noel v.
OR Olds, 78 U.S.App.D.C. 155, 138 F.2d 581,586.Statements in
opinions wherein courts indulgedin generalities that had
the absent party claims an interest relating to the subject no actual bearing on issuesinvolved. Graham v. Jones, 198
of the action and a disposition of the action without that La. 507, 3 So.2d 761, 774.A remark made, or opinion
person may expressed, by a judge, in hisdecision upon a cause, "by the
as a practical matter impair his ability to protect that way," that is, incidentallyor collaterally, and not directly
interest OR upon the question beforehim, or upon a point not
leave the persons already parties subject to a substantial necessarily involved in the determinationof the cause, or
risk of incurring double, multiple or otherwise inconsistent introduced by way of illustration,or analogy or argument.
obligations. See Dictum.

NEGATIVE DEFENSE PENDENTE LITE. Lat. Pending the suit; duringthe actual
Requires the prosecution to prove the guilt of the accused progress of a suit; during litigation.In re Morrissey's Will,
beyond reasonable doubt. Accused claims that one of the 91 N.J.Eq. 289, 107A. 70, 71.
elements of the offense charged is not present.It is
incumbent upon the prosecution to prove the existence of PER CURIAM. Lat. By the court. A phraseused in the
this element. reports to distinguish an opinion ofthe whole court from
an opinion written by anyone judge. Sometimes it denotes
NEGATIVE PREGNANT. In pleading, a negative implying an opinionwritten by the chief justice or presiding
also an affirmative. Cowell. Such a form of negative judge.Clarke v. Western Assur. Co., 146 Pa. 561, 23 A.248,
expression as may imply or carry within it an affirmative. 15 L.R.A. 127, 28 Am.St.Rep. 821.
Steph. Pl. 318; Fields v.State, 134 Ind: 46, 32 N.E. 780;
Stone v. Quaal, 36Minn. 46, 29 N.W. 326. PLAIN MEANING RULE
 a rule in statute or contract interpretation: when the
As if a man be said to have aliened land in fee, and hesays language is unambiguous and clear on its face
he has not aliened in fee, this is a negative pregnant;for, the meaning of the statute or contract must be
though it be true that he has not aliened in fee, yetit may determined from the language of the statute
be that he has made an estate in tail. Cowell. A"negative or contract and not from extrinsic evidence.
pregnant," is a denial in form, but is in fact anadmission, as
where the denial in hiec verba includes thetime and place, PLEADINGS. The formal allegations by theparties of their
which are usually immaterial. Hall &Lyon Furniture Co. v. respective claims and defenses, forthe judgment of the
Torrey, 196 App. Div. 804, 188 N.Y.S. 486, 487; Green v. court. Smith v. JacksonvilleOil Mill Co., 21 Ga.App. 679, 94
Commercial Bank & Trust Co. D.C.Wyo., 277 F. 527, 528; S.E. 900, 901; Wilkinsonv. Stone, 82 Okl. 296, 200 P. 196,
McIntosh Livestock Co. v. Buffington,108 Or. 358, 217 P. 199; Treadgoldv. Willard, 81 Or. 658, 160 P. 803, 805.The
635, 636. A denial in such form as to imply or express an individual allegations of the respective partiesto an action
admissionof the substantial fact which apparently is at common law, proceeding fromthem alternately, in the
controverted;or a denial which, although in the form of a order and under the distinctivenames following: The
traverse,really admits the important facts contained in the plaintiff's declaration,the defendant's plea, the plaintiff's
allegationsto which it relates. Cramer v. Aiken, 63 replication,the defendant's rejoinder, the plaintiff's
App.D.C.16, 68 F.2d 761, 762. surrejoinder, the defendant's rebutter, the
plaintiff'ssurrebutter; after which they have no
NUNC PRO TUNC. Lat. Now for then. In rePeter's Estate, distinctivenames. Burrill.The term "pleadings" has a
175 Okl. 90, 51 P.2d 272, 274. Aphrase applied to acts technical and well-definedmeaning. Pleadings are written
allowed to be done afterthe time when they should be allegations of what isaffirmed on the one side, or denied
done, with a retroactiveeffect, i. e., with the same effect as on the other, disclosingto the court or jury having 'to try
if regularlydone. Perkins v. Hayward, 132 Ind. 95, 31N.E. the cause the real matterin dispute between the parties.
670; Secou v. Leroux, 1 N.M. 388."Nunc pro tune" entry is Desnoyer v. Hereux, 1Minn. 17 (Gil. 1).
an entry made now of somethingactually previously done
to have effect of formerdate; office being not to supply PONENTE
omitted action, but to supplyomission in record of action  is the member to whom the court, after its deliberation on
really had but omittedthrough inadvertence or mistake. the merit of the case, assigns the writing of its decision or
Mallory v. Ward BakingCo., 270 Mich. 94, 258 N.W. 414; resolution in the case
People v. Rosenwald; 266Ill. 548, 107 N.E. 854, 856,
Ann.Cas.1915D, 688; Grizzard v.Fite, 137 Tenn. 103, 191 PRECEDENT. An adjudged case or decision ofa court of
S.W. 969, 971, L.R.A.1917D, 652. justice, considered as furnishing anexample or authority
for an identical or similarcase afterwards arising or a
similar question oflaw.It means that a principle of law facts. Such a question is distinct from a question of law,
actually presented to acourt of authority for consideration which must be answered by applying
and determination has,after due consideration, been relevant legal principles.
declared to serve as a rulefor future guidance in the same
or analogous cases, butmatters which merely lurk in the QUESTION OF LAW
record and are not directlyadvanced or expressly decided also known as a point of law, is a question that must be
are not precedents. EmpireSquare Realty Co. v. Chase Nat. answered by applying relevant legal principles to
Bank of City of NewYork, 43 N.Y.S.2d 470, 473, 181 Misc. interpretation of the law. Such a question is distinct from
752; Kvos, Inc. v.Associated Press, 299 U.S. 269, 279, 57 a question of fact, which must be answered by reference
S.Ct. 197, 81 L. Ed.183.A draught of a conveyance, to facts and evidence as well as inferences arising from
settlement, will,pleading, bill, or other legal instrument, those facts.
which isconsidered worthy to serve as a pattern for
futureinstruments of the same nature. RATIO DECIDENDI. The ground of decision. The point in a
case which determines the judgment.
PREJUDICIAL QUESTIONS RATIO LEGIS. The reason or occasion of a law; the occasion
is a separate action from the original crime which of making a law. Bl.Law Tracts, 3.
determines the guilt or innocence of a person under
trial. ... First, the civil action that is previously instituted Real party. In statutes requiring suits to bebrought in the
has similar or closely related issue/s involved in the name of the "real party in interest,"this term means the
criminal action. person who is actuallyand substantially interested in the
subject-matter,as distinguished from one who has only a
nominal,formal, or technical interest in it or
PRELIMINARY INJUNCTION. See Injunction. PRELIMINARY. connectionwith it. Hoagland v. Van Etten, 22 Neb. 681,
Introductory; initiatory; preceding;temporary and 35N.W. 870; Gruber v. Baker, 20 Nev. 453, 23 P. 858,9
provisional; as preliminaryexamination, injunction, articles L.R.A. 302; Chew v. Brumagen, 13 Wall. 504, 20L.Ed. 663.
of peace,etc Gay v. Jackson County Board of Education,205 Ky. 277, 265
S.W. 772, 773; Taylor v.Hurst, 186 Ky. 71, 216 S.W. 95, 96;
PRE-TRIAL Rothwell v.Knight, 37 Wyo. 11, 258 P. 576, 582.
a proceeding held by a judge, arbitrator, etc., before
a trial to simplify the issues of law and fact and stipulate RECUSAL
certain matters between the parties, in order to expedite Judicial disqualification, also referred to as recusal, is the
justice and curtail costs at the trial. act of abstaining from participation in an official action
such as a legal proceeding due to a conflict of interest of
PRIMA_FACIE, Lat. At first sight; on the firstappearance; on the presiding court official or administrative officer.
the face of it; so far as can bejudged from the first
disclosure; presumably;a fact presumed to be true unless
disproved bysome evidence to the contrary. State ex rel. REJOINDER. In common-law pleading. The second pleading
Herbertv. Whims, 68 Ohio App. 39, 38 N.E.2d 596,599. on the part of the defendant, being his answer to the
plaintiff's replication
PRIMARY JURISDICTION
COURT OF FIRST INSTANCE. A court of primaryjurisdiction. RELIEF FROM JUDGMENT
Courts of this title may befound in the jurisprudence of the A motion for relief from the judgment is a request made to
Philippine Islands.15 C.J. 688. the court for correcting a clerical mistake in the judgment,
that is, a mistake which results in the judgment's
PRO BONO incorrectly reflecting the court's intentions or relieving the
PRO BONO ET MALO. For good and ill; for advantage and party from the judgment because of inadvertence,
detriment. surprise, or excusable neglect, newly discovered evidence
PRO BONO PUBLICO. For the public good; for the welfare that could not have been discovered through diligence in
of the whole. time for a motion for new trial, the judgment's being the
result of fraud, misrepresentation, or misconduct by the
PRO HAC VICE. For this turn; for this one particular other party, or the judgment's being void or having been
occasion. satisfied or released.

PRO SE. For himself; in his own behalf; in person.

Res gestoe. Things done. McClory v.
QUESTION OF FACT Schneider,Tex.Civ.App., 51 S.W.2d 738, 741. Those
is a question which must be answered by reference to circumstanceswhich are the automatic and
facts and evidence, and inferences arising from those undesignedincidents of a particular litigated act, whichmay
be separated from act by lapse of time moreor less S.W.2d 11, 14. See, also, Res Adjudicata, supra.Estoppel
appreciable, and which are admissiblewhen illustrative of and res judicata distinguished. See Estoppel.
such act. The whole of thetransaction under investigation
and every partof it. Res gestEe is considered as an ROLLO
exception tothe hearsay rule. In its operation it renders is the United Nations Rule of Law liaison Office, which
actsand declarations which constitute a part of thethings monitors activities in the rule of law.
done and said admissible in evidence, eventhough they
would otherwise come within the ruleexcluding hearsay SEPARATE OPINION
evidence or self-serving declarations.The rule is extended Concurring opinion. An opinion, separate from that which
to include, not onlydeclarations by the parties to the suit, embodies the views and decision of themajority of the
but includesstatements made by bystanders and strangers, court, prepared and filed by ajudge who agrees in the
undercertain circumstances. Edwards v. West Tex- as general result of the decision,and which either reinforces
Hospital, Tex.Civ.App., 89 S.W.2d 801, 809;Slayback Van the majorityopinion by the expression of the particular
Order Co. v. Eiben, 177 A. 671, 673,115 N.J.L. 17. For judge'sown views or reasoning, or (more commonly)voices
evidence to be admissible as resgestfe, there must be an his disapproval of the grounds of the decisionor the
act in itself admissible inthe case independently of the arguments on which it was based,though approving the
declaration that accompaniesit; a declaration uttered final result.
simultaneously,or almost simultaneously, with the
occurrenceof the act; and the explanation of the act by Dissenting opinion. A separate opinion in which a
whatis said when it happens. Staley v. Royal PinesPark, 202 particular judge announces his dissentfrom the conclusion
N.C. 155, 162 S.E. 202, 203.Test as to whether declaration held by a majority of thecourt, and expounds his own
is part of res Best a dependson whether declaration was views.
facts talking throughparty or party talking about facts.
Batchelor v. AtlanticCoast Line R. Co., 196 N.C. 84, 144 S.E. SIN PERJUICO JUDGMENT
542, 544, 60 A.L.R.1091."Res gestae", while often spoken It is a judgment without a statement of the facts in support
of as an exception tothe hearsay rule, is generally not such of its conclusions. Such ajudgment is void for it violates
in fact but ordinarilyit relates to statements which because Section 14, Article viii of the Constitution.Thus, the party
of their intimaterelation to facts become a part of those adversely affected would be unable to file a motion for
facts andare therefore admitted as such. Industrial reconsideration orappeal the judgment for he has to
Commission ofColorado v. Fotis, 112 Colo. 423, 149 P.2d speculate on the grounds upon which the judge based
657, 659. hisdecision.Indispensable parties should have been
impleaded
Res ipsa loquitur. The thing speaks for itself.Rebuttable
presumption that defendant was negligent,which arises STARE DECISIS. Lat. To abide by, or adhereto, decided
upon proof that instrumentalitycausing injury was in cases.Policy of courts to stand by precedent and not
defendant's exclusivecontrol, and that the accident was todisturb settled point. Neff v. George, 364 Ill. 306,4 N.E.2d
one whichordinarily does not happen in absence of 338, 390, 391. Doctrine that, when courthas once laid
negligence.Sliwowski v. New York, N. H. & H. R. Co.,'94 down a principle of law as applicableto a certain state of
Conn. 303, 108 A. 805, 807; Poth v. DexterHorton Estate, facts, it will adhere tothat principle, and apply it to all
140 Wash. 272, 248 P. 374, 375;Pearson v. Butts, 224 Iowa future cases,where facts are substantially the same.
376, 276 N.W. 65, 67. Moore v.City of Albany, 98 N.Y. 396, 410; Regardless
ofwhether the parties and property are the same.Horne v.
Res judicata. A matter adjudged; a thing judiciallyacted Moody, Tex.Civ.App., 146 S.W.2d 505,509, 510. Under
upon or decided; a thing or mattersettled by judgment. A doctrine a deliberate or solemndecision of court made
phrase of the civil law,constantly quoted in the books. after argument on questionof law fairly arising in the case,
Epstein v. Soskin,86 Misc.Rep. 94, 148 N.Y.S. 323, 324; Rule and necessary toits determination, is an authority, or
thatfinal judgment or decree on merits by court binding precedentin the same court, or in other courts of
ofcompetent jurisdiction is conclusive of rights ofparties or equalor lower rank in subsequent cases where thevery
their privies in all later suits on pointsand matters point is again in controversy. State v. Mellenberger,163 Or.
determined in former suit. AmericanS. S. Co. v. Wickwire 233, 95 P.2d 709, 719, 720, 128A.L.R. 1506. Doctrine is one
Spencer Steel Co., D.C.N.Y.,8 F.Supp. 562, 566. And to be of policy, groundedon theory that security and certainty
applicable, requiresidentity in thing sued for as well as require that accepted and established legal principle,
identity ofcause of action, of persons and parties to action, underwhich rights may accrue, be recognized and
and of quality in persons for or against whomclaim is followed,though later found to be not legally sound,but
made. Freudenreich v. Mayor and Councilof Borough of whether previous holding of court shall be adheredto,
Fairview, 114 N.J.L. 290, 176A. 162, 163. The sum and modified, or overruled is within court'sdiscretion under
substance of the wholerule is that a matter once judicially circumstances of case before it.Otter Tail Power Co. v. Von
decided isfinally decided. Massie v. Paul, 263 Ky. 183, 92 Bank, 72 N.D. 497,8 N.W.2d 599, 607, 145 A.L.R. 1343.
Under doctrine,when point of law has been settled by
decision,it forms precedent which is not afterwardsto be
departed from, and, while it should ordinarilybe strictly
adhered to, there are occasions whendeparture is
rendered necessary to vindicate plain,obvious principles of
law and remedy continuedinjustice. McGregor v. Provident
Trust Co. ofPhiladelphia, 119 Fla. 718, 162 So. 323. The
doctrineis a salutary one, and should not ordinarilybe
departed from where decision is of long standingand rights
have been acquired under it, unlessconsiderations of
public policy demand it. ColonialTrust Co. v. Flanagan, 344
Pa. 556, 25 A.2d 728,729.The doctrine is limited to actual
determinationsin respect to litigated and necessarily
decided questions,and is not applicable to dicta or obiter
dicta.In re Herle's Estate, 165 Misc. 46, 300 N.Y.S. 103.

SUBJUDICE
Latin for "under a judge", means that a particular case or
matter is under trial or being considered by a judge or
court. The term may be used synonymously with "the
present case" or "the case at bar" by some lawyers

SUMMARY JUDGEMENT
judgment that may be granted upon a party's motion
when the pleadings, discovery, and any affidavits show
that there is no issue of material fact and that the party is
entitled to judgment in its favor as a matter of law