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CAPTIONS. 1. What papers should be entitled. FORMS. 2. Contents of caption.
(41) Caption of a paper in a pro3. Several parties.
ceeding, not in an action. 4. Proceedings after change of par (42) Caption of paper other ties.
than an order of court, in 5. – after writ of error or appeal.
an action. 6. Several causes. 7. Collateral proceedings.
1. What papers should be entitled.]— In general, all papers in an action or a special proceeding should be entitled in a manner which will indicate the court and identify the action or proceeding. But a notice or similar appendage, at the foot or on the back of a paper properly entitled, to which it refers, needs of course no separate title.
2. Contents of caption.]— The caption, or title, includes the name and locality of the court and the names of the parties. The summons,48 the complaint,49 and the judgment, which form permanent parts of the record, and will be relied upon in future to determine questions of parties and jurisdiction, should name every party; and if there are diversities of name and capacity, all should be indicated.
In papers in the common intermediate proceedings in the cause it is enough after specifying the court, to say Ą. B. and others, plaintiffs, against Y. Z. and others, defendants, naming the first party on each side if there is but the one suit pending between them. If there are two or more suits in which the parties are identical, the papers should be distinguished by adding in the blank space at the right hand of the title No. I, No. II, respectively; and it will be found very essential to the conve
47 “ Cole Circuit Court," in the caption of an indictment, held sufficient to indicate the Circuit Court of Cole County. State v. Meinhart, 73 Mo. 562.
48 Under N. Y. Code Civ. Pro., § 417, the summons must contain the title of the action, specifying all the parties to the action, and the court in which the action is brought; if the action is brought in the Supreme Court, the title must specify the name of the county in which plaintiff desires the trial.
49 The N. Y. Code requirements as to the title of the complaint correspond with those of the summons. (8 481.)
50 White v. Hess, 8 Paige (N. Y.), 544; Jerauld Co, v. Williams, 7 So. Dak.
nience of the practitioner to make the same mark distinctly in the title upon the indorsement of each paper.
3. Several parties.] - Formerly it was the practice for each attorney to put his own client's name first, using, if the client was defendant, the abbreviation ads. (ad sectam = at suit of), to connect the plaintiff's name. This is no longer good practice.
But where an attorney appears for one or more of several defendants, the others of whom have defaulted, it is still common to mention his client's name as the first defendant, adding, “impleaded with” the other defendants.
4. Proceedings after change of parties.]— When a person has ceased to be a party by death or amendment, his name as a party is dropped from thereafter entitled papers and the name of his successor in the action is substituted.
5. after urit of error or appeal.]—A writ of error is a new process, and needs the names of each of the parties,51 and if it fails to designate them, even where it uses a firm name, intending to include partners whose names are not given, it is insufficient;62 and if it appears by the record that such others were parties below, the defect of the omission of their names from the writ cannot be cured by amendment unless the record itself supplies the names.53 Moreover, the name of the plaintiff in error takes the first place, though he may have been the defendant below; hence the title is often inverted.
An appeal, on the other hand, generally carries up the cause entitled as it was below, and the general adoption of this remed under Code procedure, instead of a writ of error, 54 has in so fa prit an end to the inconvenient practice of reversing the partie
6. Several causes.] If one proceeding is taken in two more causes at once, the title of each should be used, one belo the other.
51 Gumbel v, Pitkin, 113 U. S. 545, 548.
55 By N. Y. Code Civ. Pro., & 1295, after an appeal is taken the name of Appellate Court must be substituted for that of the court below; other the title shall not be changed in consequence of the appeal.
7. Collateral proceedings.]— Practitioners are sometimes at a loss to know how to entitle a paper in a collateral proceeding. Under Code procedure there is no magic in a title, and the question generally is, simply, has the proceeding been clearly identified? When there is a more substantial question respecting the title, it is because the consequences of proceeding in the action may differ from the consequences of initiating a new proceeding which requires new jurisdictional facts, and may involve different limitations, relief, and rights of appeal. When this question is determined, the sufficiency of the details of the form of title (except in any process or pleading in which the parties are not otherwise named) depends merely on its making a clear identification of the proceeding, whatever it is; and any defects which do not impair identification ought, under the Code procedure, to be disregarded. The application of this principle to summons, complaints, petitions, judgments, and affidavits and orders, is further noticed in connection with those subjects. The · rule for particular classes of proceedings, such as CONTEMPT, etc., will be stated in connection with those subjects.
FORM No. 41.
Supreme Court; County of
[or, other court].
In the Matter of the Application
A. B., an Infant, for leave to sell Real
Estate (or other brief description of object of proceeding).
TO THE SUPREME COURT OF THE STATE OF NEW YORK:
The petition of [etc., or other introduction appropriate to the character of the paper), respectfully shows:
FORM No. 42.
[Name of court, and, if Supreme Court, name of county.]
CERTIFICATES. 1 Nature and use.
(44) Certificate establishing fact
that paper has not been Forys.
filed. (43) General form of official cer- (45) Certificate to correctness of tificate.
1. Nature and use.]— Where a sworn officer of the court has cognizance of a matter within the scope of his duty — as, for instance, a clerk, referee, or master in chancery, or a sheriff and it is desired to bring the matter before the court incidentally for its action, the court will usually receive and act on his simple certificate of the fact in question, if the matter be one in which he stands indifferent between the parties.60 But if he is concerned, as where the contest is regarding his misconduct or his fees, his oath is required unless waived. See also the following Article relating to Copies.
FORM No. 43.
General form of official certificate. Supreme Court; County of New York.61
I, M. N., clerk of the county of
[or, referee appointed herein by order of this court, dated the
19 ], do hereby certify that [stating fact in question]. [Date.]®
[Signature and official title.]
60 See, for instance, Abb. Civ. Jury Brief (2d ed.), 551, par. 13 (judge's certificate to fact entitling party to costs — N. Y. Code Civ. Pro., § 3248).
61 If the title does not indicate the place of making the certificate, or if the certificate is for use beyond the jurisdiction, insert a venue below it as in case of an affidavit.
62 If a certificate is to be used
without the jurisdiction it is better to state that the officer is em. powered by law to do the act, as this statement will usually be received as prima facie proof.
63 If the certificate is to be used