Walter Houston Anderson.

Actions for declaratory judgments : a treatise on the pleading, practice, and trial of an action for a declaratory judgment, from its inception to its conclusion, with forms online

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Online LibraryWalter Houston AndersonActions for declaratory judgments : a treatise on the pleading, practice, and trial of an action for a declaratory judgment, from its inception to its conclusion, with forms → online text (page 19 of 112)
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the court's finding that the transaction was abandoned by all of
the parties thereto, and that because of liens and other clouds upon
the title of the property, it was at all times an impossibility for the
seller to perform said contract, was sustained by the evidence.**

93. N.Y.— Modern Holding Corp. v.
Feldman, 79 N.Y.S.2d 19.

94. U.S.— Aetna Life Ins. Co. v. W.
I. Southern, Inc., Okla., 306 U.S.
563, 59 S.Ct. 657. 83 L.Ed. 987,
mandate conformed to 105 F.2d

IlL — See also Grein v. Grein, 303
Ill.App. 398, 25 N.E.2d 409. A
wife is entitled to have declared
void a divorce decree secured by
defendant, in Nevada where the
evidence showed that the de-
fendant husband was not a bona
fide resident of Nevada and that
he was guilty of fraud and de-
ception on the Nevada court in
that he failed to advise such
court of a former adjudication in
Illinois denying a divorce.
N.Y. — See also. Bank of New
York & Trust Co. v. Snedeker,
173 Misc. 126, 16 N.Y.S.2d 930,
affirmed 257 App.Div. 939, 13 N.Y.
S.2d 278. In an action by mem-
bers of an incompetent's commit-

tee for declaratory judgment es-
tablishing their right to interest on
incompetent's loan to defendant
and personal judgment for ar-
rears of interest, defendant's ex-
amination before trial, his writ-
ten agreement acknowledging ob-
ligation to pay interest monthly,
his consistent monthly payment
thereof, his failure to claim that
there was no agreement to pay
such interest until over five years
after he signed such agreeemnt,
and his failure to take the witness
stand to contradict such claim,
conclusively showed there was
such an agreement.

95. CaL — Lyon v. Goss, Cal.App.,
115 P.2d 886, reversed on other
grounds, 19 Cal.2d 659, 123 P.2d
11. See also, Lyon v. Goss, Cal.
App., 115 P.2d 891, reversed on
other grounds. 19 Cal.2d 659, 123
P.2d 11.

96. CaL— Davis v. Stulman, 72 Cal.
App.2d 452, 164 P.2d 787.


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§ 432. Citizenship— ^Weight and Sufficiency of Evidence

In a proceeding in the nature of a suit under the Nationality Act
against the attorney general to obtain a declaratory judgment that
the petitioner who was born in Norway about one year after his
iather had returned to that country after becoming a naturalized
citizen of the United States, was a United States citizen, the evi-
dence warranted a judgment declaring that the petitioner was a
citizen of the United States on the ground that the petitioner had
met statutory and treaty requirements.*^

§ 433. Trusts— Weight and Sufficiency of Evidence

In a suit for a declaration establishing a trust for the plaintiff in
real estate interest devised to the defendant wife by the father of
the defendant husband, who filed an answer seeking a declaration
of the same trust against his wife, the evidence was not so clear,
cogent and convincing as to exclude all reasonable doubt as to the
creation of a constructive trust in the wife for the husband.*^

In an action brought by one stockholder against another seeking
a declaratory judgment against the defendants that whatever title
and interest the defendants had in a certain theatre building and
equipment therein located was held in trust for the plaintiff, and
was therefore in law the plaintiff's property, the evidence was
insufficient to establish a constructive or resulting trust in said
property or to hold the defendant as constructive or resulting

§ 434. Racial Discrimination — Weight and Sufficiency of Evidence

In an action brought by negro citizens and tax payers for a
declaration seeking to eliminate discrimination between negro and
white children, the evidence was sufficient to sustain a finding that
a discrimination existed to such an extent to warrant the court
in making a declaration.*

97. U.S. — Haaland v. Attorney Gen- 99. Mo. — Hyde Park Amusement
era! of U. S., D.C.Md., 42 F.Supp. Co. v. Mogler. 358 Mo. 336. 214
13. S.W.2d 541.

98. Mo.— Strype v. Lewis 352 Mo. 1. U.S.— Pitts v. Board of Trustees
1004, 180 S.W.2d 688, 155 A.L.R. of DeWitt Special School Dist.
99. No. 1, 84 F.Supp. 975.


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In an action brought to remove discrimination against negro
school teachers, and to fix and stabilize their constitutional rights
against salary discriminations, the evidence was sufficient to sustain
a finding that a newly promulgated plan assertedly to be followed
in the future was without such discriminatory objections.*

In an action brought seeking a declaration as to discriminatory
salary payments and other rights of colored school teachers as
contra-distinguished from white teachers, the evidence established
such discrimination, and that there was a very constructive and
recognized disparity in the pay of the negro and white teachers
resulting from the racial discrimination. It appeared, however,
that there had been a bona fide attempt to eliminate such discrimi-
ilation and to prevent the disparity, but that the same had not been
accomplished at the time of the decision of the court.*

§ 435. Sales — ^Weight and SuiEciency of Evidence

A brewer and a purchaser entered into an agreement whereby
the brewer undertook to brew for the purchaser a certain ale, and
the court was asked to determine whether the purchaser had a
formula by which it could require its product to be brewed by the
brewer. It also appeared that from the contract, the price to be
charged by the brewer was to be based upon labor and materials,
and the court held the evidence was sufficient to sustain a finding
that the purchaser had a formula for the brewing of the products
covered by the contract which had been accepted by the brewer,
and which in truth and in fact breached the original agreement.-*

§ 436. Conspiracy — Weight and Sufficiency of Evidence

In an action brought seeking an injunction against the defend-
ants preventing them from engaging in a conspiracy in violation
of the Sherman Anti-Trust act and to obtain a declaratory judg-
ment of rights, the evidence was sufficient to sustain a finding that
such conspiracy existed between a labor union and another to

2. U.S.— Thompson v. Gibbes, 60 F. 4. Ky.— E. F. Prichard Co. v. Hei-
Supp. 872. delberg Brewing Co., 307 Ky. 833.

3. U.S.— Thompson v. Gibbes, 60 F. 212 S.W.2d 293. See also. 304 Ky.
Supp. 872. 109, 200 S.W.2d 128.


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prevent the plaintiff from producing photo engraving products at

§ 437. Contracts — ^Weight and Sufficiency of Evidence

In a controversy by the railroads involving land grant equaliza-
tion agreement, the trial court found that the representatives of
the plaintiff and defendants who participated in the issuance of
what was designated a "Division Sheet," had no authority to enter
into a contract to allocate or apportion revenues accruing from the
shipment of government freight, subject to land grant deductions.
That they did not intend to enter into such contract nor did any
of the plaintiffs or defendants ever construe or interpret the "Divi-
sion Sheet" to be a contract, and that the term "joint rates" as
used between parties in a certain sheet applied only to commission
rates charged the public and which were subject to the jurisdiction
of the interstate commerce commission, and that it did not apply
to the government freight mentioned above.*

Where certain parties had engaged in the wholesale and retail
jewelry business, the court held that the conclusion was inescap-
able, that the course of conduct followed by the parties for 13
years was not such as to give rise to any implication as to a plan
or pattern in stock distribution, and while the evidence showed that
the establishment and operation of the wholesale company, was
closely related to the operation of the retail business, it was insuffi-
cient to show that the associates in the wholesale business banded
together as joint adventures to carry on the entire jewelry busi-
ness, but that the evidence established the wholesale and retail
business were in fact distinct, and that neither the wholesale house
nor the individuals were under obligation either morally or con-
tractually to invest in any single retail enterprise, but were free
to accept or reject the opportunity to invest when tendered to

5. U.S.— Philadelphia Record Co. v. Ohio Ry. Co., 155 F.2d Idl, see
Manufacturing-Photo Engravers also, (H S.Ct. 122, 129, 329 U.S.
Ass'n. of Philadelphia, 155 F.2d 762, 91 L.Ed. 657.

799, reversing tZ F.Supp. 254. 7. U.S.— Elm Corp. v. E. M. Rosen-

6. U.S.— Thompson v. Baltimore & thai Jewelry Co., 161 F.2d 902.


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§ 438. Necessity of Exploring Antecedent Procedure in Action
Involving Tax Deed

Although under the Declaratory Judgments Statute a court
may be authorized to construe a tax deed under which one of the
parties claims as grantor and declare his rights thereunder, based
upon a proper construction, but the declaratory statute does not
contemplate that the court shall explore the procedure antecedent
to the issuance of the tax deed for the purpose of pronouncing a
decree declaratory of the validity of such deed, as against imper-
fections in the antecedent procedure.*

§ 439. Survival and Abatement of Actions

It seems that the rule with respect to when an action for de-
claratory relief survives or abates on the death of the plainti£F is
determined by the traditional rules covering abatement and sur-
vival in other actions or suits. In an action seeking to have de-
clared void an order committing the plainti£F to a state hospital as
an insane person, and to have expunged from the records prior
proceedings initiated by the defendant which resulted in the dec-
laration of insanity and commitment order against the plaintiff, and
at the conclusion of the trial the court took the matter under
advisement, but before a decision therein, the plaintiff died and his
executor was thereafter substituted, it was held that the action

Where the contention was made that a declaratory action to set
aside a divorce decree could not be maintained after the death
of one spouse, unless it appeared that the divorce decree or the
subsequent action to set it aside involved some property right in
which the surviving spouse was beneficially interested, however
it should be noted that a court has authority to purge its own rec-
ords and may set aside a judgment at any time when it appears
that the court has been imposed upon by intrinsically fraudulent

8. Fla.— Stuart v. Stephanus, 94 Fla. Ore.— First Nat. Bank v. Wall,
1087, 114 So. 767. 161 Ore. 152, 88 P.2(i 311. How-

Woodman v. Jones, 101 Fla. ever, it should be noted that while

177, 133 So. 620. See also. Cook v. this was purely a declaratory

Pontious, 98 Fla. 373, 123 So. 765. judgment action, no mention of

9. Mo. — See Gee v. Bess, Mo.App., the statute was made.
132 S.W.2d 242.


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acts, and the court's power in this respect is not dependent on
whether property rights are involved, but a sufficient property
right is involved where it is made to appear that the spouse was
killed as the result of an accident and arose in the course of his
employment, and claims for death benefits arising under the
workmen's compensation act would be sufficient, in any event to
bring the case within the rule relating to the necessity for the
involvment of a property right.^®

§ 440. Necessity of Raising Question in Trial Court in Order to
Have Review on Appeal

An appellate court will not consider a defect in a complaint
not going to the substance of the matter, where it was not called
to the trial court's attention by demurrer, motion, or other ap-
propriate attack particularly when it is apparent that such de-
fect could have been readily cured by an amendment." The ob-
jection that a declaratory action was filed in the wrong branch of
the court must be raised in the trial court in order to be available
on appeals* The contention that an action was prematurely
brought is not available in the appellate court where not raised in
the trial court.^*

Where, under a declaratory statute, a procedural requirement is
found that exceptions to the decision must be filed within thirty
days before appeal can be taken therefrom, as to exceptions not
so filed the appeal is ineffectual in so far as they are concerned.^*
The contention that the Supreme Court of New Jersey was un-
authorized to refer proceedings, for a construction of a lease under
a declaratory judgment statute, to the circuit court is not a ground
for appeal in that state, and if it were, the appellant would waive

10. CaL— Rivieccio v. Botham, 67 12. Ky.— Hatzell v. Dover, 208 Ky.
Cal.2d 621, 165 P.2d 677, sec also, 149, 270 S.W. 723.

156 P.2d 73. 13. CaL — Loomis Fruit Growers*

11. Aril. — State ex rel. Sullivan v. Ass'n. v. California Fruit Ex-
Price. 49 Ariz. 19, 63 P.2d 653, change, 128 Cal. App. 265, 16 P.2d
108 A.L.R. 1156. 1040.

Ci.— Lippitt V. City of Albany, 14. Pa. — Orndoff v. Consumers* Fuel
131 Ga. 629, 63 S.E. 33. Co., 308 Pa. 165, 162 A. 431.


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the same by voluntarily submitting to the jurisdiction of the cir-
cuit court without objection.^'

Under the declaratory judgment statute providing that the ap-
pellate court should not be confined to errors, assigned or ap-
parent, in the record, such appellate court has jurisdiction to, and
will, dismiss a declaratory judgment action involving the constitu-
tionality of a statute for defect of parties, although the question
of defect was not raised in the trial court.^*

If a litigant would take advantage of the non-joinder of proper
parties, he must do so in the trial court, and should call such defect
of parties to the attention of the trial court by either a demurrer
or answer. The question is unavailable when raised for the first
time on appeals ^

Where the defendant sought to raise a question on appeal, that
although, an actual controversy was alleged in the pleadings, it
was not "specifically set forth" therein as required by the declara-
tory judgment statute, and proof that there was such controversy
was lacking, which question was not raised in the court below,
it can not be urged in a reviewing courtJ"

§ 441. Instructions to the Jury

The instructions to the jury in a declaratory action are governed
by the same rules of law as prevail in other cases. In a liability
insurance company's declaratory action to determine whether or
not it was obligated to defend a damage suit brought against its
insured, for injuries to others sustained in a collision allegedly
resulting from the negligence of the driver of the insured auto-
mobile, an instruction that the driver was not acting as an agent
or servant of the insured, who was the driver's employer, which
contained a statement that proof of agency was unnecessary in
order to justify a finding of express and implied consent by the

15. N.J.— McCrory Stores Corpora- mit Gas & Water Co., Ind.

tion V. S. M. Braunstein, Inc., 102 App. . 84 N.E.2d 207.

N.J.L. 590, 134 A. 752. 18. MaM.~Pitman v. J. C. Pitman &

16. Ky.— Worden v. City of Louis- Sons, 324 Mass. 371, 86 N.E.2d
ville, 279 Ky. 712, 131 S.W.2d 923. 649.

17. Ind. — G. S. Suppiger Co. v. Sum-


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insured to the driver to use the automobile, was not misleading or
unduly unfavorable to the defendants.^*

In an instruction with respect to an agent's authority, the court
charged that under the laws of state in regard to special agencies
for a particular purpose, the person dealing with such agent should
examine the agent's authority, and that under the written contract
in question in the particular case between the plaintiffs and a
named party, that such person was a special agent with limited
authority as shown by the contract, and that so far as the contract
itself was concerned, such agent under said contract would be an
agent for the particular purposes enumerated therein, and it would
be the duty of parties dealing with the agent to examine his
authority in order to ascertain whether or not notice to him would
be notice to the principal and the failure of a party dealing .with
such agent to make such an examination would constitute notice
to the agent only, and notice to him as an individual, and not notice
to his principal, and it was held that this sufficiently covered a
requested instruction and was sufficiently specific in its application
to the facts of the case to cover the point involved.*^

In an action for a declaration to determine the liability of an
automobile liability insurance company under an alleged oral con-
tract, charge respecting the authority of a general agent who rep-
resented two insurance companies and with whom the contract
was allegedly entered into, was not objectionable on the ground
that there was no evidence that the agent acted for the particular
insurance company at the time of the conversation relating to the
insurance, in view of the evidence authorizing a finding that the
agent was acting for the defendant insurance company.*'

In a declaratory action to determine the liability of an insur-
ance company as to whether it was bound to pay a judgment re-
covered against its insured for injuries sustained by a filling station
employee, where the insured by its managing agent had engaged
the employee and the insured and agent, before the employee was

19. N.H.— American Employers Ins. 70, 52 S.E.2d 643. Sec also, 48
Co. V. Wentworth, N. H., 5 A.2d S.E.2d 876.

265. 21. N.H.— Elliott v. Standard Ace.

20. Ga.— Milwaukee Mechanic's In- Ins. Co., 92 N.H. 505, 33 A.2d
surance Co. v. Davis, 79 Ga.App. 562.


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§ 441


Ch. 7

injured, agreed for the agent to operate the station on his own ac-
count, but the insured gave to the employee no actual notice of
the intention to terminate his employment contract, an instruction
that, if the employee knew or should have known that his em-
ployer had been changed, the employee was not in the employ of
the insured at the time of the accident was proper.

But a requested instruction that, if the insured did not have the
right to control the employee, he was not in the insured's cm-
ploy, and that the employment was terminable without notice, was
properly denied.**

In litigation over a joint bank account, instruction with respect
to undue influence in the creation of the account by the transfer
of funds from other accounts was not misleading.** No com-
plaint may be made as to giving and refusing of instructions to
the jury where such jury is treated by the court as acting in an
advisory capacity, and that the ultimate findings of fact and judg-
ment did not depend upon the jury's findings.**

Language is too weak adequately to express the just condemna-
tion of the Janus-faced expression "and/or" in the instruction to
the jury. This monstrous barbarism has no place in documents or
literature, and above all its use should be eschewed in an instruc-
tion supposedly for the guidance of the layman, such as a jury.**

22. N.H. — Ocean Ace. & Guarantee
Corp. V. Connell, 93 N.H. 11, 35
A.2d 385. 150 A.L.R. 1163.

23. Mo. — Weber v. Jones, Mo.

App. , 222 S.W.2d 957.

24. Colo. — Equitable Life Assur.
Soc. of United States v. Hemen-
over, 100 Colo. 231. 67 P.2d 80.
110 A.L.R. 1270. In the course
of the opinion in the last-cited
case, it is said. *'If this was not
a jury case the company has no
cause of complaint. The court
treated the jury as merely ad-
visory. Findings and judgment
depend in no measure upon the
verdict. Hence whether the in-
structions were correct or incor-
rect is immaterial."

25 Colo. — Equitable Life Assur-

Soc. of United States v. Hcmcn-
over. 100 Colo. 231, 67 P.2d 80.
110 A.L.R. 1270. wherein the
court said. "Next to the prescrip-
tion of physicians, accuracy is
nowhere so imperative as in con-
tracts, statutes, and legal pro-
ceedings. It is correspondingly
discouraging to find* dragged into
these the ingenious invention of
scriveners to confuse and be-
fuddle. The latest and lustiest
of thsee pests is the literary
fraction. *and/or*. which appears
at least fifty times in the record
before us. The resulting con-
fusion is emphasized by the fact
that three of these are in de-
murrers, three in assignments,
and one in a tendered instruc-


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Where a life insurance policy was assigned to secure the payment
of a debt and after the death of the insured the assignee thereof
brought a declaratory action seeking a determination of rights
thereunder, the court properly instructed the jury that the only
question to be determined by them was the amount, if any, due the
assignee and that the assignee was not entitled to recover the full
amount of the life policy, unless the debt was sufficient to consume
the amount thereof.**

In an action for a declaratory judgment, the defendants' requests
for instructions in the nature of demurrers to the evidence have no
effect except to rest the case and submit the issues to the trial
court for a decision on the merits.*^

§ 442. Law of the Case

The rules governing what amounts to an establishment of the
law of the case in declaratory judgment actions are no different
from those controlling other suits and actions. However, it has
been held that where a point was raised in a declaratory action on
defendant's motion to dismiss the complaint prior to answering.

tion. Wc have not found one
attributable to counsel for de-
fendants in error. Whatever de-
fense might be made for it else-
where it becomes, in demurrer
or assignment, a mere 'weasel*
phrase, and certainly jurors
could not be expected to inter-
pret it. Mr. John W. Davis calls
this a 'pollution of the English
language/ Mr. George W. Wick-
ersham refers to it as a 'bar-
barism', 'one of the worst ex-
amples of "journalese'* * and says
'Its use in pleadings and in
court proceedings and in legis-
lative acts is utterly unjustified*.
Numerous appellate courts have
been called upon to deal with it
and have generally spoken of it
with disrespect. Mr. Justice
Fowler, speaking for the Su-
preme Court of Wisconsin, has
dubbed it a 'nameless thing,

that Janus-faced verbal mon-
strosity, neither word nor
phrase.' Employers Mut. Lia-
bility Ins. Co. of Wisconsin v.
ToUefsen, 219 Wis. 434, 263
N.W. 376. We do not quote fur-
ther from the foregoing be-
cause of the caustic criticism of
counsel which follows, and we
expressly disclaim a present pur-
pose to criticize. We wish
simply to suggest the useless-
ness and absurdity of 'and/or*
and express the hope that this
is its last appearance in this

See also, section 250, supra,
where cases are collected con-
demning "and/or**.

26. Ky.— Arrowood v. Duff, 287 Ky.
107, 152 S.W.2d 291.

27. Mo.— Strype v. Lewis, 352 Mo.
1004, 180 S.W.2d 688, 155 A.L.R.


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again on its motion for reargument thereafter, and again on its
motion for judgment on the pleadings after answering and was
decided adversely to the defendant in each instance, the deci-
sions which were not appealed from became the controlling law
of the case.**

§ 443. Substance, not Form, Considered

The character of the action, whether it is declaratory or other-
wise, must be ascertained from a determination of the facts plead-
ed, rather than from the title thereof or the prayer for relief, and
when, upon such an examination, it appears that the cause of ac-
tion is of a different sort or belongs to another category than that
assigned to it by the litigants, the substance of things, and not
mere form, will be regarded, since the nature of the action is not
a cause for declaratory relief, but the subject matter involved as
set forth in the pleadings.**

This rule governs at all stages of proceedings whether it is in
the trial court, or on appeal in the state court, or in the Supreme

Online LibraryWalter Houston AndersonActions for declaratory judgments : a treatise on the pleading, practice, and trial of an action for a declaratory judgment, from its inception to its conclusion, with forms → online text (page 19 of 112)