N.J. Constitutional Convention: Vol. 4, Page 314

Tuesday, July 8, 1947 (Afternoon session)

the failure of Congress to reject the rules is construed as an adoption of the rules. And the courts, in construing the statute, have held that the rules are statutory.

MR. DIXON: Even though it doesn't - just in that language?

JUDGE SMITH: That's right. The procedure is simple. I will explain it to you in a moment. Now, the first rule embodied in the rules of civil procedure, and this is a rule of court adopted and approved by Congress - these rules govern the procedure in the District Courts of the United States and all suits of a civil nature, whether cognizable as cases at law or in equity, with the exception of certain ones stated in Rule 81 - "they [the rules] shall be construed to secure the just, speedy and inexpensive determination of every action." And that is all there is to it.

MR. GEORGE F. SMITH: We had one witness who, in talking about the rules followed in the federal courts, said that the rule-making procedure was very complicated and involved volumes and volumes, as he described it. Now, what is the fact?

JUDGE SMITH: That is not the fact. It's interesting -

MR. THOMAS J. BROGAN: Judge, I think what the witness said was that Hughes on Federal Practice, annotated, ran into many volumes, which is a fact.

JUDGE SMITH: Well, gentlemen, you place me in the position of passing an opinion on a set of law books. Let me say this to you about Hughes on Federal Practice. Hughes on Federal Practice was just as voluminous prior to the adoption of the rules as was said. Moore's Federal Practice, which is considered by many of the judges the leading text on the new rules, comprises three volumes. Those three volumes are annotated, and the volume is increased by reason of annotation and explanation and the opinions of the writer, which is true of all texts. Hughes on Federal Practice embraces the earlier practice. When the new rules came out it was allowed to embrace the new rules, and it also has many forms. A more interesting comparison - and I think the best comparison, if you are wondering about the number of volumes - we find in the rules themselves prior to the adoption of the Federal Rules of Civil Procedure. We had some rules of civil procedure. We also had separate rules which governed equity. It's interesting to note that the rules which governed equity prior to the adoption of what we now call the Federal Rules of Civil Procedure, embraced 81 rules. The equity rules are no longer followed. They are no longer in existence, and the present rules of civil procedure embrace but 86 rules. There are but five more rules.

Now, as to the thought that there is volume after volume, that's true of some texts, but that is not a fair comparison. There is one thing that is true - since the rules of civil procedure were first promulgated in 1938 (I went into practice shortly thereafter), there

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