AUTHOR OF A TREATISE ON OKLAHOMA JUSTICE PRACTICE, AND A TREATISE ON WORK- STAFF OF THE WEST PUBLISHING COMPANY IN THREE VOLUMES VOLUME I KANSAS CITY, MO. VERNON LAW BOOK COMPANY PREFACE THOUGH Oklahoma is one of the newest states, the Code of Civil Practice adopted from Kansas and the changes made since its adoption in the Territory have been so thoroughly tried out and so frequently construed by the highest courts in clear, analytical opinions that a comprehensive work on procedure and practice can now be written, based on controlling authorities. Such a work is here attempted. Every statute relating in any way to procedure is quoted in full in connection with the treatment of the subject to which the statute relates. Every Kansas and Oklahoma case containing any discussion of procedural matters has been examined and the law gleaned therefrom, in so far as it is. applicable to the practice in Oklahoma at the present time. A studious effort has been made to eliminate all decisions which are now inapplicable, or which have been reversed or overruled. Although the Code of Civil Procedure was adopted with a view of simplifying and stabilizing the rules of procedure, all of these rules, with their numerous qualifications and applications, cannot be said to be incorporated in the statute as adopted by the Legislature. Volumes have been written around a single clause or section of the Constitution of the United States; likewise, pages, if not volumes, could well be written around each of various sections of the Code-all being based upon decisions throwing light upon the construction and application of the Code provisions. In the year 1850, Mr. Justice Selden, of the Supreme Court of New York, said: "Many of the technical rules of the common-law system of pleading may well have been considered as originating in, and connected with, those distinctions between the different forms of action which were peculiar to that law. There are, however, some of those rules which are so well adapted to accomplish the end of all pleading that I should find it difficult to persuade myself that the Legislature could have intended to abrogate them." The evil of the common-law system of pleading, depending upon a system of rules necessarily artificial and complex, in consequence of which, either through ignorance or mistake, an issue would be formed not involving the real merits of the controversy, and a decision be produced contrary to justice and equity, was originally sought to be remedied by allowing the widest scope in the proof of facts not strictly in issue. This remedy has been repudiated by the Code, and this evil remedied in large part by the liberal allowance of amendments. The Code abolishes the distinctions between actions at law and suits in equity, and the course of proceeding in both cases is now the same. Whether the action depends upon legal or upon equitable principles, it still remains a civil action, to be commenced and prosecuted without reference to this distinction. Although this is true in reference to the form and course of proceeding in the action, the principles determinative of the rights of the parties remain unchanged. The more liberal view of the Code is that it is based upon an entirely new theory, with different ends to accomplish, and that it is better, in order to carry out its spirit, to consider it as a new theory, to be construed and carried into effect upon principles peculiar to itself. If the attorneys of to-day were first made familiar with the rules of common-law pleading as they existed in the early part of the last century, it would be well to adopt this view; but so many rules, many of which grew out of the old rules, have been built up around the provisions of the Code, in such way as to become in effect a part thereof, that the question whether these rules are the same as those existing at common law is of minor importance. In other words, it is generally enough to know that, ever since the adoption of the Code, we have been borrowing from the common law to supplement and clarify the Code; but the extent to which we have borrowed is not of any great importance, since the majority are more familiar with these rules than with the original rules of the common law. However, familiarity with the common-law rights of action is important. Mr. Justice Burwell, of the Supreme Court of the Territory of Oklahoma, well said that, "while the forms of actions have been changed, we must not forget that the right of any particular action, as it existed at common law, remains the same, unless abridged or denied by the statute; and, while the commonlaw forms of action have been abolished, the rights of such actions. continue to exist, but under a different name. Every cause of action that existed under the common-law forms, which has not been abolished, still exists under the name of a 'civil action.' The statute did not abolish common-law causes of action; it only abolished their forms and grouped them under one head." This work may be said to contain two indexes; one the table of contents at the beginning of the work, and the other the index proper at the close. It also contains a table of statutes and constitutional provisions, showing the section of the work in which each such statute or provision is cited. It also contains a table oi cases, in which are arranged in alphabetical order all of the several thousand cases cited. The arrangement and general form of the work is the result of several years' experience, and, if it is found to be logical and workable, the lawyer should be able, with the other aids above mentioned, to find in these volumes what he wants, with a minimum of effort, provided it is within the scope of the work. A sample of every form suggested by the text, or the statutes. quoted, is contained in these volumes, and it is hoped that they will be of aid, at least, in the preparation and the checking of forms. prepared by the lawyer. I desire to acknowledge an indebtedness for valuable assistance. given by my law partner, Mr. Herbert D. Mason, and also by the following attorneys: Mr. Kenneth Lawing, who assisted in the preparation of the entire work; Mr. L. G. Williams, who assisted in the preparation of the forms; Mr. Roscoe E. Harper, Professor of Law of the Oklahoma University, who assisted on the chapter on Appeal and Review, and Mr. Elton B. Hunt, who assisted in the portion of the work relative to certain special proceedings and special writs. ARTHUR B. HONNOLD. TULSA, OKLAHOMA, January 2, 1922. |