A Treatise on the Law of Judgments: Including the Doctrine of Res Judicata, Том 1

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West Publishing Company, 1902 - 1592 страници
 

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Judgments are not Contracts
10
Question of Statutory Construction
11
Methods of Classifying Judgments
12
Judgments on an Issue of
13
Judgments upon Verdict
14
Judgments without Verdict
15
Judgment against the Verdict
16
Names of Judgments in certain Special Actions
17
Notice of Application 135 Evidence
22
Must be final as to all Parties
23
Must settle all the Issues
24
Uncertainty of the Amount
25
Judgment of Nonsuit
26
Dismissal of Suit
27
CrossClassifications of Judgments
28
Classification of Decrees
29
CHAPTER II
30
ESTOPPEL BY JUDGMENT AND THE DOCTRINE OF RES JUDICATA
31
In Condemnation Proceedings
40
Finality of Decrees
41
Further Action necessary to settle the Equities
42
Further Action necessary to execute the Decree
43
Decree ordering a Reference
44
Directing an Account
45
995 Parties Jointly Liable 996 Payment by Surety 997 Release of Garnishee by Payment of Principal Judgment 998 Payment by Sheriff 999 Payment...
61
Decree suspending Rights until further Orders
66
Deeree dissolving Partnership 48 Foreclosure of Mortgage
67
Sending Issue out of Chancery
68
CHAPTER III
69
Judgment must be Valid Subsisting and Final
70
Authorized by Statutes
72
Court must have Jurisdiction
73
Who may confess Judgment
75
Confession by Married Woman
77
Married Woman as Creditor
80
Confession by Partner
81
Joint Defendants
82
By Officers of a Corporation
83
Consent of Creditor is necessary
84
Requisites of Warrant of Attorney
85
Objections to Character of Judgment
86
61a Revocation or Expiration of Warrant
87
Constructive Service on Residents
95
Debt not yet
99
For Future Advances 72 For contingent Liabilities
100
Amount of the Judgment
101
Liquidation of Amount by Clerk 75 Inclusion of Attorneys Fees
102
Recording the Judgment
103
Reversing and Vacating Judgments by Confession
104
Effects of confessed Judgment
107
CHAPTER IV
108
Fraud as a Defense
109
Joint Defendants
113
Jurisdiction of the Defendant
114
Must be founded on good Declaration
118
Premature Entry of Default
120
Default when proper
122
Conclusiveness of Judgment by Default
126
Entry by the Clerk
128
Interlocutory Judgment when necessary
129
Assessment of Damages
132
Evidence on Assessment of Damages
133
Amount of the Recovery
134
Judgment by Default not aided by Presumptions 94 Opening and Vacating Judgments by Default
135
Review of Judgments by Default
136
CHAPTER V
137
Power to Order SetOff of Judgments 1001 Judgments of Different Courts may be Set Off 1002 Where the Motion should be Made
138
CHAPTER VI
149
Indexing the Judgment 113 Remedy against Clerk for improper Entry
160
Contents of the Judgment
161
Form of the Judgment
163
Designation of the Parties
165
Designation of the Property
167
Designation of Amount of Recovery
168
Voidable and Void Judgments
170
Jurisdiction
171
Character and Status of Parties
172
Conditions in Judgment
173
Joint Defendants
174
Time of entering Judgment
175
Judge out of Office
176
Time and Place of holding Court
177
Date of the Judgment
178
Construction of Ambiguous Judgments
179
The JudgmentRoll or Record
180
Premature Entry of Judgment
181
Supplying Lost Records
182
125a Entry of Judgments in Federal Courts
183
Judgment in Action not at Issue
184
CHAPTER VII
185
Judgment must follow Verdict
186
187 Against what Parties Judgments may be Rendered
187
Delay by Motions or Appeal
188
Laches of Party
189
Supplying Entry of Judgment
190
Correction of Clerical Errors
191
Not a proper Means of changing or revising the Judgment
192
Only proper when Final Judgment could be entered
193
Service of Process on Infants
194
Appearance by Attorney or Guardian
195
Effect of Failure to plead Infancy
196
Decrees in Equity against Infants
197
Infant Plaintiffs
198
Judgments against Deceased Parties
199
CHAPTER VIII
200
Allowance of Credits 144 Tender Counterclaim Offer of Compromise
208
Joint Parties
209
Affirmative Relief to Defendant
211
Interest
212
Conditions as to Payment 149 Statutory Damages
213
Designation of Amount 151 Judgment designating Medium of Payment
214
Judgment for Coined Money
215
CHAPTER IX
218
Amendment after the Term
220
Correction of Clerical Errors
223
Supplying Omissions
225
Reforming and Perfecting the Judgment
227
Probate Adjudications
229
Judicial Errors not to be thus Corrected
230
Amendment as to Amount of Judgment
232
Amendment in Respect of Parties
234
What Courts have Power of Amendment
236
Time of making Application
237
Method of applying for Amendment
239
Notice of Application
240
Evidence
243
Method of making Corrections
245
Allowance of Amendment is discretionary 168 Jurisdiction of Equity
246
Effect of Amendments on Third Persons
247
Adjudications in Bankruptcy
248
Awards
249
Judgments of Inferior Courts
250
CoOrdinate Courts
251
What constitutes a Collateral Attack
252
Proceedings to prevent Execution of the Judgment
253
253a Proceeding to Enforce Judgment by Mandamus 254 Habeas Corpus Proceedings
254
Errors and Irregularities not Reviewable
255
Jurisdiction may be examined
256
Constitutionality of Statutes
257
Jurisdiction to render the Particular Sentence
258
Sufficiency of Process or Pleadings
259
To what Parties the Rule applies
260
Erroneous and Irregular Judgments
261
Mistakes in the Judgment
262
Irregular or Defective Service
263
Objections as to Parties
264
Legal Disability of Parties
265
Disqualification of Judge
266
Judgment for Excessive Amount
267
Insufficiency of Evidence
268
Illegal or Insufficient Cause of Action
269
Jurisdiction of Superior Courts presumed
270
Silence or Incompleteness of the Record
271
Appearance by Attorney
272
Jurisdictional Recitals
273
Judgment against Decedent Voidable only 201 Death of One of Several Defendants
274
Cases denying Conclusiveness of Record
275
Arguments on the Conclusiveness of Records
276
No Presumption against the Record
277
Judgment Void on its Face may be Attacked Collaterally
278
Entry of Judgment against Decedent Nunc pro Tune
298
Jurisdiction must be acquired before Partys Death 204 Judgment for Deceased Plaintiff
299
Inquisitions of Lunacy
303
Joint Parties at Common
304
In Actions of Tort
307
Joint Debtor Acts
308
One Defendant suffering Default
310
Judgment when Several when Joint
312
Joint Judgment as an Entirety
313
Confession of Judgment by Joint Defendants
317
Misnomer of Parties
318
Descriptio Personæ
321
CHAPTER XII
322
Notice to Defendant
330
Statutes dispensing with Citation
331
Statutes regulating Mode of Citation
332
Defects in the Process 223
333
Defects in the Service
334
Appearance as a Waiver of Citation
335
Defendants Right to be heard 227 Judgments against NonResidents
338
ExtraTerritorial Service of Process
341
Jurisdiction by Attachment of NonResidents Property
342
What Property bound
345
Service by Publication without Attachment
346
Statutes authorizing Constructive Service to be strictly construed
348
Joint Defendants
350
Joint Judgment as an Entirety 235 Joint Judgment authorized by Statute
351
Statutory Several Judgment
352
Judgment against làrtners 238 Appearance for Defendant not Served
354
Construction of Judgment against Defendants generally
355
Jurisdiction of the SubjectMatter
356
Sufficiency of Declaration
357
Jurisdiction of Question decided
358
Loss of Jurisdiction
361
Jurisdiction attaching Error does not Vitiate
362
FOR WANT OF JURISDICTIONContinued 279 Superior Courts exercising Special Statutory Powers 280 Summary Proceedings 281 Constructive Se...
364
Decrees of Divorce 804 Orders of Naturalization
366
Settlement of a Pauper 806 Questions of Identity Legitimacy and Pedigree 807 Bankruptcy and Insolvency
370
Perjury
372
Taking Judgment contrary to Agreement
373
Unauthorized Appearance of Attorney
374
Negligence or Mistake of Counsel
375
Want of Jurisdiction
376
Judgment founded on False Return of Service
377
Legal Defense not Interposed
378
Illegality of Consideration
379
Excuses for not defending at
380
Same Mistake
381
Same Surprise
382
Same Accident or Misfortune
383
Ignorance of Legal Defense
384
Discovery must have been sought
385
Newlydiscovered Evidence
386
Negligence of Party precludes Relief
387
Defense not available at
388
Probate Adjudications 809 Judgments for Taxes and Assessments 810 Foreclosure of Liens 811 Decrees of Sale
396
CHAPTER XXI
399
FOREIGN JUDGMENTS
405
Certainty required in Docket and Index as to Names of Parties
406
What is Necessary to JudgmentLiens
407
Interlocutory Judgments
408
Judgments against Personal Representatives
409
Nunc Pro Tunc Judgments
410
Decrees in Chancery
411
Judgments of Inferior Courts
412
Judgments of Federal Courts
413
Statutory Basis of such Liens
414
Territorial Extent of such Liens
415
Decrees in Admiralty
416
Territorial Restriction of Lien
417
Transfer of Judgment to Another County
418
Lien binds Real Estate
419
Actual Interest of Debtor bound
420
Title held in Trust
421
Inchoate Title
422
Land Fraudulently Conveyed
423
Exempt Property
424
Homestead Property
425
LifeEstates
426
Estates by Curtesy
427
Reversions and Remainders
428
Leasehold Interests
429
Land held by Joint Owners
430
Partnership Property
431
AfterAcquired Property
432
Equitable Estates and Interests
433
Equity of Redemption
434
Judgment against Trustee
435
Land held under a Power
436
Judgment against Cestui Que Trust
437
Interest of Vendor under Executory Contract
438
Record of Inferior Court showing Jurisdiction is Conclusive
439
No Presumption of Validity on Direct Attack
440
Foreign Judgments
441
FOR FRAUD 290 Whether Parties can Impeach Judgment for Fraud
442
Fraud in Procuring the Judgment
443
Fraud in the Cause of Action
445
Creditor may show Fraud in a Judgment
446
Fraud must affect the Creditors
447
What Creditors allowed to allege Fraud
448
False Testimony
450
CHAPTER XIV
451
GROUNDS FOR VACATING JUDGMENTSContinued
452
S53 Before the Constitution
453
By Audita Querela
458
By Error Coram Nobis
460
By Bill of Review
461
By Direct Action
462
Judgments against NonResidents
475
Laches of Party
476
Cancellation or Entry of Satisfaction
478
THE PARTIES WHO MAY APPLY 314 Successful Party may Apply
479
Joint Defendants 316 Legal Representatives of Party
480
Strangers
482
WHAT JUDGMENTS MAY BE VACATED 318 General Rule
483
Consent Judgments
484
Judgments in Divorce
485
320a Adjudications in Bankruptcy
487
GROUNDS FOR VACATING JUDGMENTS
489
Fraud and Collusion
493
Judgment taken contrary to Agreement
494
Perjury
495
Want of Notice
498
Unauthorized Appearance by Attorney
499
ORIGIN AND General PrINCIPLES OF THE DOCTRINE OF RES JUDICATA 500 Basis of the Doctrine of Res Judicata
500
In the Roman
501
Modern European Systems
502
Irregularities
503
326a Objections to Jury
504
Judgments against Persons under Disabilities
505
Unauthorized Entries 329 Judgment not Vacated because Erroneous
506
Not for Grounds which might have been pleaded in Defense
507
Illegality of Cause of Action
508
Newlydiscovered Evidence
509
Judgment on reversed Judgment
510
Statutory Grounds for Vacating Judgments 355 Mistake
511
Not affected by Motion for New Trial
512
Voidable and Void Judgments
513
Erroneous Judgments
514
Surprise
515
Casualty or Misfortune
516
Sickness of Defendant
517
Sickness of Counsel
518
Excusable Neglect
520
Judgments of the Federal Courts
521
340a Mistake Ignorance or Erroneous Advice of Counsel
523
CourtsMartial
524
Military Tribunals
525
Awards of Arbitrators
526
Decisions of Appellate Courts
527
Misunderstanding of Counsel
528
Unavoidable Absence of Counsel
529
Fraud of Attorney
530
Misinformation as to Time of Trial
531
345a Estoppel to Apply for Vacation of Judgment
532
PRACTICE ON VACATING JUDGMENTS 346 Notice of Application
533
Parties and Privies
534
346a Requisites of Petition or Moving Papers
535
Party bound only in the Capacity in which he Appears
536
Nominal and Real Parties
537
Affidavit of Merits
538
Stranger Promoting the Litigation
539
Meritorious Defense must be Shown
540
Person Submitting his Interest is bound
541
Technical or Unconscionable Defense not Sufficient
542
Effect of Additional Parties
543
Opening Judgment to admit Defense
544
One Plaintiff suing in Behalf of Many
545
Unknown Owners
546
Evidence
547
Estoppel must be Mutual
548
Imposition of Terms
549
Purchaser Pendente Lite
550
Mortgagor and Mortgagee
551
Partial Vacation of Judgment
552
Allowance of Application discretionary
553
Remaindermen
554
Parties to Negotiable Paper
555
354a Practice on Opening Default
556
Effect of Vacating Judgment
557
Decedent and Heirs
558
Decedent and Representatives
559
CHAPTER XV
560
Courts of Admiralty
561
Successive Administrators
562
Principal and Ancillary Administrator
563
Administrator and Probate Purchaser
564
565 CoHeirs or Distributees
565
Surviving Partners and Representative of Deceased
566
Warrantor and Warrantee
567
Defenses Open to Warrantor
568
Requisites of Notice to Warrantor
569
Warrantor must have Opportunity to Defend
570
Effect of Judgment when Warrantor not Notified
571
Warrantor of Personal Property
572
Indemnitors
573
Persons Responsible Over 1
574
Judgment against City as Evidence in Action against Person Liable
575
Same CrossActions and Actions over
576
GROUNDS FOR ENJOINING JUDGMENTS 365 General Grounds for Equitable Relief
577
General Rule Stated
578
Master and Servant
579
Errors and Irregularities
580
Bailor and Bailee
581
Successors in Office
582
Fraud
583
583a Corporation and Bondholders 584 Municipal Corporation and TaxPayers
584
Fraud in Preventing Defense
585
585a Assignees and Receivers 586 Principal and Surety
586
Fraud in Procuring the Judgment
587
Sureties of Sheriffs and Constables
588
Deceit and Concealment
589
Sureties of Guardians
590
Actions between Sureties for Contribution
591
Principal and Guarantor
592
Conclusiveness of Judgment against Garnishee
593
Not Conclusive as to Amount of Debt
594
Right of Garnishee to Question Legality of Prior Proceedings
595
As between Garnishee and Assignee of Claim
596
As between Garnishee and Stranger
597
Foreign Judgment against Garnishee
598
Effect of a Judgment as between CoDefendants
599
Judgments do not bind Strangers
600
Exception Courts of Exclusive Jurisdiction
601
Exception Judgments In
602
Exception Principle of Stare Decisis
603
Judgment as Evidence of its own Existence
604
Judgment as Evidence of Relation of Debtor and Creditor
605
Judgment as Evidence of Facts Provable by General Reputation
606
Judgment as Link in Chain of Title
607
The Four Identities
610
Matters Incidentally Considered
611
Inferences from the Judgment
612
Necessary Conditions to the Adjudication
613
What Constitutes the Matter in Issue
614
Points Necessary to Warrant the Judgment
615
Defense available either at Law or Equity
616
Satisfaction or Release of Judgment
617
Injunction as a Means of securing SetOff
618
Personal Disability of Parties
619
PRACTICE ON APPLICATION TO ENJOIN Judgment 393 Nature and Requisites of Bill
620
Entire Demands cannot be Severed
621
Facts Assumed or Admitted
622
393a Evidence 393b Joinder of Parties
623
Conditions on Granting Relief
624
Effect of Enjoining Judgment
625
Dissolution of Injunction
626
CHAPTER XVI
627
439a Sale of Land After Entry of Judgment 440 Estates successively conveyed
628
Survival against JudgmentDebtor 467 Death of JudgmentDebtor 468 i 471 Remedies of Creditor after Expiration of Lien 469 470 PART VII SUSPE...
629
JudgmentLien is Statutory
630
Legislative Control of JudgmentLiens
631
Inconsistent Positions in Litigation
632
Lien gives no Property in Debtors Land
633
Lien is General 402 Courts cannot control the Lien
634
Parties cannot change Nature of Lien
635
Conclusiveness of Probate as to Realty
636
Effect of Rejection of Will
637
Parties bound by Probate
638
638a Construction of Will 639 Appointment of Administrator
639
Grant of Administration no Proof of Death
640
Allowance or Rejection of Claims
641
Order for Sale of Land
642
Decree of Distribution
643
Settlement of Accounts
644
Appointment of Guardian
645
Order for Partition
646
DISTINCTIVE RULES AS TO EJECTMENT and Other REAL ACTIONS 647 Common Law Rules as to Real Actions
647
Common Recovery
648
Writ of Entry
649
Ejectment at Common
650
Ejectment upon an Equitable Title
651
In Action for Mesne Profits
652
Confession of Judgment in Ejectment
653
Successive Judgments in Ejectment made Conclusive by Statutes
654
Modern Actions Corresponding to Ejectment
655
AfterAcquired Title not Barred
656
Judgment in Trespass
657
Whether Judgment in Trespass is Conclusive in Subsequent Eject ment
658
Trespass to Try Titles
659
Judgment in Partition
660
Parties bound by Partition
661
661a Landlords Action for Recovery of Possession 662 Action for Use and Occupation
662
Forcible Entry and Detainer
663
Action to Quiet Title
664
Dower Proceedings
665
Foreclosure Suits
666
Constitutional and Statutory Provisions 855 Early Cases on the Subject 856 Mills v Duryee and Later Decisions 857 Judgment Conclusive on the Mer...
667
Award of Arbitrators upon Title to Land
667
Bankruptcy Proceedings
668
Trespass
669
Trover
670
Replevin
671
Detinue
672
Estoppel by Former Judgment
673
Doctrine of Merger
674
Merger by Decree in Equity
675
Foreign and Sister State Judgments
676
New Debt created by the Judgment
677
Estoppel by Election
678
There must be a Valid Judgment
680
Erroneous or Irregular Judgments
681
681a Judgment Procured by Fraud 682 Verdict without Judgment no
682
Judgment Reversed or Vacated
683
Effect of Granting New Trial
684
Pendency of Appeal
685
Effect of Discontinuance
686
Decision of Court without Jury
687
Awards
688
Judgment in Summary Proceedings
689
Lis Pendens and Priority of Decision
690
Judgments on Motions
691
Renewal of Motion in the Same Case
692
Merits must be Adjudicated
693
Meaning of the Term Merits
694
Judgment must be Final
695
Judgment upon Plea in Abatement
696
Judgment by Default
697
Judgment upon Confession
698
Nonsuit no
699
Judgment on Retraxit
700
Discontinuance
701
Judgment of Non Pros
702
Dismissal of Complaint
703
Judgment in Test Case
704
Agreed Judgments
705
Dismissal of Suit Agreed
706
Judgment on Demurrer
707
General Demurrer to Declaration
708
Demurrer to Cause of Action Stated
709
Demurrer Based on Several Grounds
710
Demurrer to Bill for Want of Equity
711
Demurrer to Evidence
712
Dismissal for Want of Jurisdiction
713
Dismissal of Action Prematurely Brought
714
Dismissal of Misconceived Action
715
Dismissal on Technical Grounds
716
Failure of Evidence
717
Defects in the Pleadings
718
Dismissal for Defect or Want of Parties
719
Dismissal of Bill in Equity
720
Dismissal Without Prejudice
721
Presumption that Merits were Considered
722
Dismissal for Want of Prosecution
723
Evidence to Show Consideration of Merits
724
Causes of Action must be the Same
725
Identification of Causes of Action
726
In Criminal Cases
727
Certainty required in Estoppels
728
Sale of the Land 480 481 Acquisition of Title by JudgmentCreditor Release of Lien
729
Limitations of this Rule
730
CHAPTER XVII
731
Restrictions of Foregoing Rule
732
Second Action Proceeding on Different Theory
733
Rule against Splitting Causes of Action
734
What Demands are Inseverable
735
Action on Running Account
736
Claims Omitted by Mistake
737
Entire Claims founded on Tort
738
Recovery in Malicious Prosecution bars Action for Slander
739
Distinct Injuries from same Tortious
740
Distinct Trespasses
741
Continuing Damages from Tort
742
Distinction between Permanent and Recurring Trespass or Nuisance
743
TerreTenants
745
Actions on Collateral Securities
746
Defenses
747
Breach of Continuing Covenant
748
Same Payment Release SetOff
749
Same Discharge in Bankruptcy
750
Same Invalidity of Original Judgment
751
Same Collateral Agreements
752
Plaintiff can have but one Satisfaction
753
Judgment on Scíre Facias 499 Practice in Pennsylvania
754
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