Select Page

Civil Procedure II
University of Maine School of Law
Petruccelli, Gerald F.

Civil Procedure II
I. Overview
Judgments and Jurisdictions
A valid Judgment:
· Is enforceable within the law court by proceeding leading to specific relief
· Bars relitigation of the same action
o unless invalid judgment which has been subject to a collateral attack (attack on a judgment other than a direct appeal ex: petition for a writ of habeas corpus)
· Is entitled to full faith in other jurisdictions
o unless invalid judgment which has been subject to a collateral attack

Once entered on the docket, a judgment can be challenged by the losing party:
· In the trial court (rule 60)
· On appeal (or certiorari)
Valid (but wrong) Judgment- is fully effective unless vacated on appeal
Invalid Judgment- is void
Jurisdiction: the authority or power to enter a valid judgment
· Issued by a court having the legal authority to act upon the subject matter and bind the parties
Right of Action-
Verdict- Made by a jury
Judgment- Judicial
The Civil Action

“Action” and “cause of action” continue to serve as the framework for the exercise of judicial power. (See rule 2). The Plaintiff still gets into court by commencing an action (see rule 3). Therefore, we must continue to develop, in modern terms, our understanding of what an action is now that the writ system has been abolished, indeed now that there is no realistic likelihood that the Queen will soon authorize any new writs, even in England.”

Evolution of the English common law writ

· Execution of a judgment is the carrying out of a judicial judgment/decree
o Execution can result in “losing the farm”
§ Execution by sale is a good example
· Contempt is when a party against whom a judgment is entered does not comply with the judgment and can be held until compliance
· Writs
o Assumpsit – breach of contract essentially
o Case – a general writ that allowed for general relief for “wrongs” – BUT it applies only where harm is indirect/consequential (whether or not the result of force)
§ Where trespass lies case will not!
o Detinue – an action to recover the actual thing take – although with detinue the thing was taken “lawfully” initially
o Replevin – same as detinue except the thing was taken “unlawfully”
o Trespass (intentional – forceful)
§ De bonis asportatis – basically like conversion/trover except that the taking was forceful/intentional and the plaintiff must have been in actual possession to bring this action
§ QCF – basically trespass to land
ú To collect there must have been damage to the land (injury resulting from unlawful entry)
ú Also the plaintiff must have a right to the land
§ Vi et armis – action to recover for injury to person or property that was DIRECTLY caused by force
o Trover – a lot like de bonis asportatis and conversion except that with trover the taking was not necessarily forcible and the plaintiff must have a right to immediate possession to be able to bring this action

Procedure for Filing a common law write:
1. Baristor (lawyer) purchases a writ in whatever action he wants to file-
· Example a Writ trespass on the case
2. Declaration – the circumstance about which you complain are within the writ (facts of the case) – overturned carriage = on the case
· IMPORTANT- If the declaration is inconsistent with the writ it will be throw out – wrong form of action
UNLESS their has been a final judgment (Williams v. Holland in which case the court will NOT look back with and eagles eye)
Demurr (motion to dismiss) is still an appropriate time to question the form of action because there has not been a final judgment (Day v. Edwards)

Actions in Trespass and Trover

For an action to be brought in trespass or trover the injury must be direct and immeadiate result of the action in question
· The appropriate cause of action for a consequential injury is an action (in trespass or trover) on the case

1. Action in Trover – A common law action (for the recovery of damages for the conversion of personal property, the damages generally being measured by the value of the property
· Trover: lost and found (leave a pen and someone picks it up) different from Tresspass DBA (stealing)

Gordon v. Harper
· The court finds that when a person leases goods in a house to another for a certain amount of time the leasor retains only a reversionary interest in the leased goods therefore he cannot recover the property through and action of trover while the existence the term of the lease.
Swift v. Moseley (based on Gordon)
· The lease entered into by Swift was dependent on his absconding to its terms; his failure to do so (by selling the live stock with out consulting the Plaintiff) terminated the lease. Therefore, the interest in the livestock reverted back to the Plaintiff. Long settled that if a tenant kill or destroy that which is leased the leasor may maintain trespass or trover.

2. Action in Trespass
Three forms of Trespass in English Writ System (now trespass: invade a space you have no right to be in)
1. Trespass vi et armis- assault and battery
2. Trespass DBA – stealing
3. Trespass QCF – Unlawful entry

Scott v. Shepard – Plaintiff sought judgment under trespass vi et armis. The question for the justices is whether t

hat rigorously maintaining (after a trial has been completed) the boundaries of forms of action is in efficient
· On demurr (motion to dismiss) it is still appropriate to question the form of action because a trial has not be completed (see Day v. Edwards)

Law and Equity

Equity Follows the Law- it is not a separate doctrine or contraditictory body of law but a supplementary

J.R. v. M.P.

J.R. is owed money from X, Y, Z. M.P. buys the futures of J.R. debts to collect from X, Y, Z. M.P in exchange for a promisor note to J.R. HOWEVER J.R. had no right under the law in 1459 to sell his debts to a stranger and force his debtors to deal with a stranger.* M.P. has no way to recover those losses in the law. Plaintiff refused to comply with an order of the Chancellor and so was committed for contempt
· *Faliure of consideration – M.P. pays for an obligation that can not under the law vest in him therefore there is no consideration for the transaction – no consideration = void transaction
M.P. v X – what is X defense? – M.P. can not sue X because the transaction between J.R. and M.P. is a nullity therefore M.P. (not being the owner) can not recover fro X under the law

Does the chancellor have the power to nullify the obligation of the Plaintiff,
No. The Chancelory can order that J.R. present the IOU to be canceled but cannot themselves cancel the IUO

EFFECT OF NEEDHAMS JUDGMENT -At this time between they dueling courts (Equity and Law) Needham finds that the court of chancery may order the Defendant to extinguish an obligation HOWEVER they can not extinguish the obligation (although they may imprison the person indefinitely)

NOW -Rule 70 – Court will appoint a stand in for J.R. who will present the IOU and it will be nullified as if presented by J.R. If no paper is necessary the Court is also authorized to resolve the issue.

Courtney v. Glanvil – defendant Glanvil was held in contempt for not performing the decree (to procure the owner of the bond to release and acknowledge satisfaction to the plaintiff – basically to pay the plaintiff)