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ties interested had been brought before the court and had had a hearing, the decree was affirmed.42

202. Form of petitions and practice upon them.-A petition should be properly entitled in the cause in which it is presented. When not a cause petition, a petition is entitled "In the matter of the application of," etc. The petitioner, if not a party to a cause in which the petition is filed, should state his name, residence, and description. A petition should contain no scandal or impertinence; for which, like any other proceeding, it may be referred. A petition need not be signed by counsel unless it seeks a rehearing on appeal. Petitions are usually signed by the party making them, either personally or by his solicitor.5

"Petitions are either for orders of course, or for special orders. Petitions for orders of course are forthwith granted, without any attendance being ordered; if they are for special matters a day is appointed for hearing them. Most things which may be moved for of course, may also be obtained as of course, upon petition. "All petitions which are for matters not granted as of course must be served upon all parties interested in the matter prayed for in them. Service is made substantially in the same way and at the same time before the hearing as that of notices of motions. If actual, and not constructive, service is required, it seems that it must be made by delivering a copy of the petition, and at the same time showing the original to the person served, unless the court otherwise directs.

Objections to the form of a petition can only be taken by demurrer. By answering a respondent lcses his right to demur,10 and, it has been held, waives the objections that the petitioner had a complete and adequate remedy at law," that he should have proceeded by bill instead of by petition;12 and, if a receiver, that he has not obtained leave to sue.13 Adverse

42 Central of Georgia Ry. Co. v. Paul, 93 Fed. R. 878.

§ 202. 1 Daniell's Ch. Pr. (2d Am. ed.) 1802.

2 Glazbrook v. Gillatt, 9 Beav. 492. 3 Daniell's Ch. Pr. (2d Am. ed.) 1803. 4 Daniell's Ch. Pr. (2d Am. ed.) 1803. 5 Daniell's Ch. Pr. (2d Am. ed.) 1803. 6 Daniell's Ch. Pr. (2d Am. ed.) 1802.

See Rules 5 and 6; Daniell's Ch. Pr. (2d Am. ed.) 1804.

8 Daniell's Ch. Pr. (2d Am. ed.) 1804. 9 U. S. R. S., & 954; Newman v. Moody, 19 Fed. R. 858.

10 Newman v. Moody, 19 Fed. R. 858. 11 Newman v. Moody, 19 Fed. R. 858. 12 Newman v. Moody, 19 Fed. R. 858. 13 Newman v. Moody, 19 Fed. R. 858.

parties may file answers denying the facts stated in a petition, or setting up other facts in avoidance. Such answers should be verified by affidavit. If the parties are at issue as to the facts, according to the more formal practice testimony may be taken as in the regular course of a suit; 15 but the more usual course is for the parties on either side to support their claim by affidavits, in the same manner as when supporting or opposing a motion.16 Proceedings upon the hearing of petitions are similar to those upon the hearing of motions." It has been said by Daniell that a petition cannot be amended by adding to it a statement of facts which have occurred since it was filed; 18 but an English judge has held otherwise.19

§ 203. Orders.- An order is a direction of the court or a judge thereof in writing.1 A telegram may be an order, but a message by telephone is not. When contained in a decree, an order is termed a decretal order. Orders may be made at any place within the territorial jurisdiction of the court; and in a Circuit Court, if all judges authorized to sit therein are absent from the circuit, it seem that they may be made by a justice of the Supreme Court sitting anywhere within the United States. It has been held, that when a district judge has, under the order of the circuit judge, tried a case in another district than his own, he may hear in his own district a motion for a new trial when the counsel for all parties waive his return to the district of the trial for the purpose of hearing and deciding the motion. It is usual, though not indispensable, in the Federal courts, before the entry of an order or decree upon the decision of the court after argument, to serve upon the attorney for the opposite party a copy of the paper proposed to be

14 Mitford's & Tyler's Pl. 448. 15 Mitford's & Tyler's Pl. 448. 16 Daniell's Ch. Pr. (5th Am. ed.)1608. 17 Daniell's Ch. Pr. (2d Am. ed.) 1805. 18 Daniell's Ch. Pr. (5th Am. ed.)1610. 19 Malins, V. C., In re Westbrook's Trusts, L. R. 11 Eq. 252.

§ 203. See U. S. R. S., § 719; Goodyear D. V. Co. v. Folsom, 3 Fed. R. 509. The practice of entitling the same order in several cases was criticised in August v. Fourth Nat. Bank, 9 N. Y. Supp. 270. The recital in an order that it was granted "upon all

the papers and proceedings" was said to be too indefinite. Faxon v. Mason, 87 Hun (N. Y.), 139.

2 Schofield v. Horse S. C. Co., 65 Fed. R. 433, 435.

In re Tampa S. R. Co., 168 U. S. 583, 588.

4 U. S. v. Louisville & P. C. Co., 4 Dill. 601; Searles v. Jacksonville, P. & M. R. Co., 2 Woods, 621; U. S. R. S., 719; 8 Ry. & Corp. L. J. 200.

5 Cheesman v. Hart, 42 Fed. R. 98, 105.

entered, with a notice that it will be presented for settlement at a specified time and place. If the attorneys live in the same town as the judge, one day's notice of settlement is usually sufficient. Orders upon interlocutory applications should be served upon the solicitor of the opposite party. If the other party takes a step in the action after an ex parte order has been obtained but before its service, "that step being in itself regular, the order which had been obtained and not served cannot afterwards be acted upon, if it will interfere with the step so taken." If it is intended to enforce the order by contempt proceedings, it should be served personally upon the party to be affected by it, unless possibly, in an extraordinary case, an order should be granted allowing substituted service.9

Interlocutory orders made upon motion may be altered or vacated at any time; 10 and orders made ex parte upon petition may also be discharged upon motion for irregularity." According to the English practice, orders made after a hearing upon a petition could not be altered or discharged without the filing of a petition for a rehearing, or upon appeal.1 A court has, during the term at which it is entered, the power to review and modify or set aside any order or decree, interlocutory or final. It has been held to be improper to file a bill of review or supplemental bill in the nature of the same in order to set aside an interlocutory order or decree. It has been held that an order in an action at common law staying plaintiff's proceedings till he pays costs of a former action is res adjudicata upon a subsequent motion, and is in so far a final order that it cannot be modified or set aside at a subsequent term.15 It has

6 Nevada N. S. v. National N. Co., 103 Fed. R. 391, 394.

7 Daniell's Ch. Pr. (2d Am. ed.) 1789; Church v. Marsh, 2 Hare, 652.

8 Re Cary, 10 Fed. R. 622.

9 Hunter v., 6 Sim. 429; Lorton v. Seaman, 9 Paige (N. Y.), 609; People v. Brower, 4 Paige (N. Y.), 405; Stafford v. Brown, 4 Paige (N. Y.), 360.

10 Daniell's Ch. Pr. (2d Am. ed.) 1616, 1807; Eslava v. Mazange, 1 Woods, 623, 627; Nelson v. Barker, 3 McLean, 379..

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11 In re Marrow, Craig & Ph. 142; Daniell's Ch. Pr. (2d Am. ed.) 1807.

12 Bishop v. Willis, 2 Ves. Sen. 113; In re Marrow, Craig & Ph. 142; Daniell's Ch. Pr. (2d Am. ed.) 1808. But see In re Dovenby Hospital, 1 Myl & Cr. 279; West v. Smith, 3 Beav. 306. 13 Doss v. Tyack, 14 How. 297, 313; Basset v. U. S., 9 Wall. 38, 41; Henderson v. Carbondale C. & C. Co., 140 U. S. 25, 40. See infra, § 350.

14 Buckles v. Chicago, M. & St. P. Ry. Co., 53 Fed. R. 566.

15 C. & A. Potts Co. v. Creager, 71 Fed. R. 74.

been held that, even in a criminal case, the court, at a term after final judgment, may enter an order correcting a clerical error nunc pro tunc as of the preceding term.16 An order granted after a hearing before one judge of a court will, unless under extraordinary circumstances, not be modified or vacated by another except upon appeal." Unless limited by their terms, or, as in the case of injunctions granted by district judges, by statute,18 orders within the jurisdiction of the judge or court that grants them remain in force until discharged by a subsequent order; 19 or until the final decree, when, unless renewed by its terms, all orders expire.20 Before the Evarts Act, no appeal lay before the final decree from an interlocutory order which was not final in its nature. It has been said by Chief Justice Taney, that "In this respect the practice of the United States chancery courts differs from the English practice. For appeals to the House of Lords may be taken from an interlocutory order of the chancellor, which decides a right of property in dispute; and therefore there is no irreparable injury to the party by ordering his deed to be canceled, or the property he holds to be delivered up, because he may immediately appeal, and the execution of the order is suspended until the decision of the appellate court. But the case is otherwise in the courts of the United States, where the right to appeal is by law limited to final decrees. And if by an interlocutory order or decree he is required to deliver up property which he claims, or to pay money which he denies to be due, and the order is immediately carried into execution by the Circuit Court, his right of appeal is of very little value to him, and he may be ruined before he is permitted to avail himself of the right. It is exceedingly important, therefore, that the Circuit Courts of the United States, in framing their interlocutory orders, and in carrying them into execution, should

16 In re Wight, 134 U. S. 136. Regularly the date of an order should be the day when it was pronounced, not the day of its entry. Ex parte Hookey, 4 De G., F. & J. 456; Ex parte Whitton, 13 Ch. D. 881.

17 Cole S. M. Co. v. Virginia & G. H. W. Co., 1 Saw. 685, 689; Oglesby v. Attrill, 14 Fed. R. 214.

18 U. S. R. S., § 719; Gray v. Chicago, I. & N. R. Co., 1 Woolw. 63; infra, § 230.

19 Eslava v. Mazange, 1 Woods, 623,

627.

20 Gardner v. Gardner, 87 N. Y. 14; Daniell's Ch. Pr. (2d Am. ed.) 1902. 21 See infra, chapters on Writs of Errors and Appeals.

keep in view the difference between the right of appeal, as practiced in the English chancery jurisdiction, and as restricted by the act of Congress, and abstain from changing unnecessarily the possession of property, or compelling the payment of money by an interlocutory order." 22 An appeal lies to the Circuit Court of Appeals from an interlocutory order or decree granting or continuing an injunction or appointing a receiver."

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§ 204. Judges who may grant orders.- An order may be made by any judge authorized to sit in the court in which the cause is pending. In the Supreme Court it is the custom for each justice to refer to the full bench every application of importance which is made to him. An order in a case pending in a Circuit Court may be made by the justice of the Supreme Court allotted to that circuit; or by any justice of the Supreme Court requested, in writing, by the circuit justice to hold court in his circuit; or if there is no justice of the Supreme Court allotted to that circuit, by any justice of the Supreme Court requested by the Chief Justice to hold court there; by the circuit judge of that circuit; by the district judge of that district; or by any judge authorized to hold the District Court in that district; or by any two of those judges.

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An order in a case pending in a District Court may be made by the judge of that district; or, if such office is vacant, by the judge of any other district within the same State; in case of the disability of the district judge for that district, or such an accumulation or urgency of business as to make the public interest require his appointment, by any other district judge within the same circuit designated and appointed after a certificate, under the court's seal, by the clerk as to those facts, by the circuit justice or circuit judge of the circuit, or, if both of them are absent from the circuit and unable to make such designation and appointment, by the Chief Justice of the United States; 10 in the District Court for the Northern District of New

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