« ForrigeFortsett »
of claim and counter claim practice prevailing in England; but let it be provided, whatever system may be adopted, that all pleadings shall be sworn to when they state facts, and supported by an attorney's affidavit of good faith when matter of law only is presented. * * * * (Lost.)
Third-That the circuit judges of the state follow as nearly as possible the practice of submitting special issues of fact to juries, and that a legislative act allowing and regulating this practice be secured.
Fourth-That chancellors be permitted to hear witnesses orally, when the demand therefor is made in the pleadings or otherwise, and that he find the facts and embody them in his decree. The findings of the chancellor should be presumptively correct, and the burden of showing otherwise should be upon the appellant. Nevertheless the old rule of requiring the chancellor's decree to be supported by the greater weight of the evidence should be continued. A court stenographer for each chancery division should be provided when and if this reform shall be accomplished.
Fifth-The practice of affirming verdicts when they are supported by any material evidence although manifestly contrary to the great weight of the testimony should be changed. A verdict founded upon the testimony of one witness when eleven equally as credible and cognizant of the facts gave evidence in the case should be set down as a child of caprice and promptly set aside.
Sixth-That appellate courts and for that matter the circuit courts be vested with the right and power to grant partial new trials, retaining as finally adjudicated the clearly well settled matters of controversy. Defendants in error and appellees should be granted the right to assign errors after giving due notice, and the appellate courts should be permitted, or required to pass upon the case as if the lower court had done with respect to the losing party that which should have been done in the first instance.
Seventh-We make no specific or emphatic recommendation as to the constitution, membership and jurisdiction of the appellate courts of the state, but do request that the reasons for certain positions taken and stated in our report of 1914 be carefully pondered. We are still of the opinion that if possible or prac
ticable, there should be but one reviewing court or court of appeal for the circuit, criminal and chancery courts of the state; or if it be ascertained that the tribunal will not suffice, that the separate courts be given final jurisdiction so as to obviate double appeals, double work, double cost, and treble delay. One review of a case should content every litigant. * * * *
Eighth-No court should decide any important cause, whether upon certerari and whether affirming or reversing another court, without oral argument. There is nothing equal to it in ascertaining the merits and the justice of a case. Nor should circuit judges be permitted to curtail oral argument to such extent as to make it of no avail; and to this end we suggest that the trial judges of the state adopt rules permitting reasonable oral argument; and if this be not done, then we recommend a legislative act securing this right. Trial judges who abbreviate oral argument too much make a serious mistake. We, of course, have reference to real arguments, and not to mere air sawing, gas-exploding or cubist-performing speakers.
Ninth-Some method of penalizing lawyers who in the appellate courts make empty and useless assignments of error should be adopted. It requires time and mental effort to determine that an assignment is needless and vacuous. Nor should attorneys cite a thousand decisions when one or two will suffice. Authorities are mere witnesses of the law, and one hundred need not be called upon when one stands unassailed.
Lawyers should not make the state library an exhibit to their briefs. They should make these documents, manifestly misnamed now, such as was originally contemplated, brief pointed statements of the real controversy, with reference to authorities immediately at hand and with direct bearing.
Numerous other reforms could be suggested, but we repeat that all changes needed cannot be brought about under the present constitution of the state. In fact, some of the above suggestions cannot be carried into effect under our present fundamental law. We have nevertheless made suggestions upon the assumption that this commonwealth will ere long adopt a new constitution. Respectfully submitted,
JOSEPH C. HIGGINS, Chairman.
J. A. FOWLER,
J. B. SIZER.
Upon motion and second the first suggestion was adopted.
This suggestion was then discussed by Mr. Lynch, Judge Higgins and others, but the President ruling the suggestion had been adopted, closed the discussion.
The second suggestion was then discussed by various members of the association, and motion made and seconded that the suggestion be adopted, but upon vote the suggestion was rejected.
The third suggestion was discussed by Mr. Brown and Mr. Burrows, after which motion was made and seconded to adopt said suggestion, and upon vote suggestion was adopted.
The fourth suggestion was discussed by Mr. Brown, Mr. Allison, Mr. Swaney, Mr. Lynch, Mr. Burrows and others.
Motion to adopt this suggestion was then made and seconded, and upon vote the suggestion was adopted.
Motion was made to adopt the fifth suggestion, and seconded, after which the matter was discussed by Mr. Burrows, Mr. Swaney, Mr. Allison, L. D. Smith, Mr. Cooke, and others, and upon the vote the suggestion was adopted.
Without discussion, it was moved and seconded that the sixth suggestion be adopted, and upon vote said suggestion was adopted.
Judge Higgins: I will make a request that this whole matter covered by the seventh suggestion be deferred until the next session, and will suggest that in the meantime this be re-referred to the committee or to a new committee to be appointed, to investigate the matter and make recommendations at the next session.
Upon motion and second this suggestion was adopted, and the matter re-referred to this committee.
The eighth suggestion was discussed by Mr. L. D. Smith and Mr. Swaney. Motion was made and seconded to adopt the suggestion, but upon vote the suggestion was rejected.
The ninth suggestion was discussed by Mr. Spears and others. Motion was made and seconded that the suggestion be received and filed, and upon vote was adopted.
Thereupon further proceedings were adjourned until 2:30
SECOND DAY-AFTERNOON SESSION.
The President: The meeting will come to order. I will first call on Mr. Hubert Fisher of Nashville, to read the memorial of Albert W. Biggs of Memphis; then Mr. Percy D. Maddin will read the memorial of Justice Lurton; next Mr. C. W. Metcalf will read the memorial of Judge Walter Malone; and Mr. S. Bartow Strang will complete the reading of the report of the committee on Obituaries and Memorials.
OBITUARIES AND MEMORIALS
ALBERT WELBURNE BIGGS.
It is a beautiful custom-that of strewing flowers over the bier and grave of the dead. It is more beautiful to have these meetings of the Bar after the departure of a worthy brother, where we weave rosemary-"that's for remembrance"-around his name, and by resolution, put in some more enduring form his deeds and virtues, that others seeing, may take heart again. At best, the life of a lawyer, however great and worthy, is most ephemeral, and as swiftly flitting as names writ in water. "The fabric of it is as fragile as a dream, and the endurance of it as transient as the dew."
It is a fitting thing to meet and pay this tribute, not alone because it is a tribute justly due to the rarely gifted and extraordinarily useful man who has fallen asleep, but also because of the benefit which will come to ourselves and others from a contemplation of the lessons of his remarkable career which will tend to elevate and ennoble our own ideals. Thus will the honored dead continue to speak to us and his life not go out, but forever go on. For the spirit of men truly great diffuses itself and exerts a molding influence on the lives of all who invoke its presence.
Again: The Germans truthfully say that every law-suit is a war of individuals, where the lawyers do the fighting. It is well for the soldiers themselves to sing truce for a day, like the Blue and the Gray, as it were, and see the better sides of each, and wear away the asperities, if any, of conflict, both between themselves and the dead.
It is true that the spirit of "nihil nisi bonum" prevails, and 'tis well for us all to cultivate this spirit, that it may become habitual between the living.
The subject of this paper, Albert Welburne Biggs, was born in Trenton, Tennessee, September 8, 1871. He was the son of Dr. Zach Biggs and Mrs. Julia Elizabeth Biggs, nee Raines. His father alone survives him.
He was educated at Trenton, Tennessee, at Peabody High School and later entered Vanderbilt University, where he graduated in June, 1892, with the Degree of Bachelor of Laws. Upon his return to Trenton from the University he was admitted to the Bar and entered the practice of law as a partner of John R. Walker, and afterwards as a partner of R. Z. Taylor. He practiced law at Trenton until 1903, when he moved to Memphis, becoming a member of the firm of Carroll, McKellar, Bullington & Biggs. He subsequently severed his partnership with that firm in 1905, upon his appointment as Assistant General Solicitor of the Yazoo & Mississippi Valley Railroad Company. In 1907 he resigned that position and formed a partnership with G. T. Fitzugh, under the firm name of Fitzugh & Biggs, and that partnership continued until April, 1913. He then associated with himself in the practice of law Thos. A. Evans, and this association continued until the date of his death.
In 1903, Mr. Biggs was married to Miss Margaret Pharr, of Kenton, Tenn., who, with one son, Albert W. Biggs, Jr., now ten years of age, survive him.
Upon his becoming a member of the Memphis Bar, and his appearance in the courts, he began to attract attention. His pleasing appearance, his close attention to his practice, his clear presentation of his cases, in both oral argument and brief, coupled with dignity of bearing and courteous manner, made him friends and clients, and he gradually, but rapidly, became one of the leaders at this Bar.
He was employed in many of the most important cases of the City and State and elsewhere. He was one of several able counsel representing his beloved church in the celebrated Vanderbilt University case, involving the ownership and control of his Alma Mater, Vanderbilt University, and his oral argument in that case before the Supreme Court of Tennessee was recognized as one of the most forceful ever delivered in that forum. He was counsel for the State of Tennessee in the boundary controversy between the State of Tennessee and the State of Arkansas, and one of the last arguments which he made was in