Document Type

Article

Publication Date

1912

Abstract

It is believed that no good reason can be assigned for answering the above question in the affirmative. Certainly none has yet been discovered in a careful search of the cases involving the point. And yet the assurance and unanimity with which lawyers and judges give the affirmative answer to it on first thought is indeed remarkable. For instance, Mr. Justice FIELD in speaking for the Supreme Court of the United States, on the question as to whether a judgment is subject to collateral attack if one served with process is not permitted to make any defense when he appears in answer to such process, said arguendo: "The decree of a court of equity upon oral allegations without written pleadings would be an idle act of no force beyond that of an advisory proceeding of the chancellor."1 He made the statement as if it were obviously true, and citation of authority was unnecessary and would be surplusage. He certainly cites no authority for his proposition, indeed there is none to cite; nor does he advance any reason to support his conclusion to that effect. Such judicial utterances as are to be found to this effect are of very much the same off-hand and ill considered sort. When the question came before the same court in a later case in which it was necessary to decide the question to dispose of the case, the same justice had no difficulty in reaching the opposite conclusion.2


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