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  1. Account Options
  2. Odgers, William Blake, | The Online Books Page
  3. Top Authors
  4. Modes of Commencing an Action

An Originating Summons may be in Forms 4 or 5 of the Rules of Court, depending on which is appropriate. Modes of Commencing an Action. Commencement of an Action. Pre-Trial Matters. In any action except criminal cases, the court may in its discretion and shall upon the motion of any party, direct the attorneys for the parties to appear before it for a conference to consider:. Unless otherwise ordered by the court the pre-trial conference shall not be called until after reasonable opportunity for the completion of discovery.

At least one [1] attorney planning to take part in the trial shall appear for each of the parties and participate in the pre-trial conference. Unless otherwise ordered by the court, at least ten [10] days prior to the pre-trial conference, attorneys for each of the parties shall meet and confer for the following purposes:. Each attorney shall mark for identification and provide opposing counsel an opportunity to inspect and copy all exhibits which he expects to introduce at the trial. Exhibits of the character which prohibit or make impracticable their production at conference shall be identified and notice given of their intended use.

Necessary arrangements must be made to afford opposing counsel an opportunity to examine such exhibits. Written stipulations shall be prepared with reference to all exhibits exchanged or identified. The stipulations shall contain all agreements of the parties with reference to the exchanged and identified exhibits, and shall include, but not be limited to, the agreement of the parties with reference to the authenticity of the exhibits, their admissibility in evidence, their use in opening statements, and the provisions made for the inspection of identified exhibits.

The original of the exhibit stipulations shall be presented to the court at the pre-trial conference. The attorneys shall stipulate in writing with reference to all facts and issues not in genuine dispute. The original of the stipulations shall be presented to the court at the time of the pre-trial conference. Attorneys for each of the parties shall furnish opposing counsel with the written list of the names and addresses of all witnesses then known. The original of each witness list shall be presented to the court at the time of the pre-trial conference.

The possibility of compromise settlement shall be fully discussed and explored. Each attorney shall completely familiarize himself with all aspects of the case in advance of the conference of attorneys and be prepared to enter into stipulations with reference to as many facts and issues and exhibits as possible. It shall be the duty of counsel for both plaintiff and defendant to arrange for the conference of attorneys at least ten [10] days in advance of the pre-trial conference.

If, following the conference of attorneys, either party determines that there are other facts or exhibits that should be stipulated and which opposing counsel refuses to stipulate upon, he shall compile a list of such facts or exhibits and furnish same to opposing counsel at least two [2] days in advance of the pre-trial conference. The original of the list shall be presented to the court at the time of the pre-trial conference. If, after the conference of the attorneys and before the pre-trial conference, counsel discovers additional exhibits or names of additional witnesses, the same information required to be disclosed at the conference of the attorneys shall be immediately furnished opposing counsel.

The original of any such disclosures shall be presented to the court at the time of the pre-trial conference. If necessary or advisable, the court may adjourn the pre-trial conference from time to time or may order an additional pre-trial conference. If, following the pre-trial conference or during trial, counsel discovers additional exhibits or the names of additional witnesses, the same information required to be disclosed at the conference between attorneys shall be immediately furnished opposing counsel.

The original of any such disclosure shall immediately be filed with the court and shall indicate the date it was furnished opposing counsel. The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleading, and the agreements made by the parties as to any of the matters considered which limit the issues for trial to those not disposed of by admissions or agreement of counsel, and such order when entered shall control the subsequent course of action, unless modified thereafter to prevent manifest injustice.

The court in its discretion may establish by rule a pre-trial calendar on which actions may be placed for consideration as above provided, and may either confine the calendar to jury actions or non-jury actions or extend it to all actions. If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party at a pre-trial conference, or if an attorney is grossly unprepared to participate in the conference, the court may order either one or both of the following:.

Every action shall be prosecuted in the name of the real party in interest. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time after objection has been allowed for the real party in interest to ratify the action, or to be joined or substituted in the action. Such ratification, joinder, or substitution shall have the same effect as if the action had been commenced initially in the name of the real party in interest. The capacity of a party to sue or be sued shall be determined by the law of this state, including its conflicts rules, except that a partnership or unincorporated association may sue or be sued in its common name.

An infant or incompetent person may sue or be sued in any action:. The court, upon its own motion or upon the motion of any party, must notify and allow the representative named in subsection 3 of this subdivision, if he is known, to represent an infant or incompetent person, and be joined as an additional party in his representative capacity. If an infant or incompetent person is not represented, or is not adequately represented, the court shall appoint a guardian ad litem for him. The court may, in its discretion, appoint a guardian ad litem or an attorney for persons who are institutionalized, who are not yet born or in being, who are unknown, who are known but cannot be located, or who are in such position that they cannot procure reasonable representation.

The court shall make such other orders as it deems proper for the protection of such parties or persons. Persons with claims against the estate of the ward or against the guardian of his estate as such may proceed under this rule or provisions applicable to guardianship proceedings. It shall not be necessary that the person for whom guardianship is sought shall be represented by a guardian ad litem in such proceedings.

Principles of pleading and practice in civil actions in the High Court ...

Nothing herein shall affect the right of a guardian to sue or be sued in his personal capacity. A next friend or guardian under subsection C of this rule may be required by the court to furnish bond or additional bond and shall be subject to the rules applicable to guardians of the estate with respect to duties, terms of the bond required, accounting, compensation and termination.

For the purposes of suing or being sued there shall be no distinction between men and women or between men and women because of marital or parental status; provided, however, that this subdivision D shall not apply to actions in tort. A partnership or an unincorporated association may sue or be sued in its common name. A judgment by or against the partnership or unincorporated association shall bind the organization as if it were an entity. A money judgment against the partnership or unincorporated association shall not bind an individual partner or member unless he is named as a party or is bound as a member of a class in an appropriate action Rules 23 and When the name or existence of a person is unknown, he may be named as an unknown party, and when his true name is discovered his name may be inserted by amendment at any time.

Parties: State as party--Attorney general. If in any action or proceeding involving real property, instituted in any court of this state, it appears from the allegations of any pleading filed therein that the state of Indiana has, or claims to have a lien upon or an interest in such real estate, the state may be made a party defendant to the action, and shall be bound by any judgment or decree rendered thereon. Service of summons shall be made upon the Attorney General as provided in Rule 4.

It shall be the duty of the Attorney General, in person or by deputy to appear and defend such proceedings or suit, on behalf of the state of Indiana. The Attorney General may, in his discretion, designate the prosecuting attorney of the circuit in which such action is pending as his deputy for the purpose of defending such proceedings or suit on behalf of the state of Indiana. After the prosecuting attorney enters his appearance as such deputy, pleadings under Rule 5 shall be served upon him for and on behalf of the Attorney General.

The state may appeal from such judgment or decree, in like manner and under the same terms and conditions as other parties in like cases.

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This rule is meant, without limitation, to apply to actions to foreclose a mortgage or other lien on real estate, to subject any real estate to sale, or to partition or quiet title to real estate. Further, in any case in which the Attorney General represents the State of Indiana, the judge presiding in the case where such cause is pending, shall promptly notify the Attorney General by United States mail, addressed to his office in Indianapolis, Indiana, of any ruling made in such cause or of the fixing of a date for the trial thereof.

A party asserting a claim for relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, whether legal, equitable, or statutory as he has against an opposing party. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two [2] claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties.

In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to him, without first having obtained a judgment establishing the claim for money. A person who is subject to service of process shall be joined as a party in the action if:. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant.

Notwithstanding subdivision A of this rule when a person described in subsection 1 or 2 thereof is not made a party, the court may treat the absent party as not indispensable and allow the action to proceed without him; or the court may treat such absent party as indispensable and dismiss the action if he is not subject to process.

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In determining whether or not a party is indispensable the court in its discretion and in equity and good conscience shall consider the following factors:. Nonjoinder under this rule may be raised by motion as provided in Rule 12 B 7. This rule is subject to the provisions of Rule Joinder of all the parties to a joint and several obligation and to a joint obligation, including a partnership obligation, shall not be required, and joint or separate action may be brought against one or more of such obligors who shall be subject to permissive joinder as provided in Rule A judgment against fewer than all does not merge or bar the claim against those not made parties for that reason.

Joinder of the assignor or transferor of a claim or chose in action shall not be required in a suit by the assignee who establishes his title by appropriate pleading and proof, but such assignor or transferor shall be subject to permissive joinder as provided in Rule Any recovery by the subrogor to the extent that such recovery is owned by a subrogee shall be made as representative and trustee for the subrogee. Suits by or against a governmental organization or governmental representative relating to the acts, power or authority of such organization or representative, including acts under purported power or authority or color thereof by such organization or representative, shall be governed by this provision.

Suits naming a governmental representative by his official title or by his name along with his official title shall be deemed to name and include the governmental organization which he represents, and suits naming an unofficial branch, office or unit of a governmental organization shall be deemed to name and include the governmental organization of which it is a part; but the court upon its own motion or the motion of any party may require the omitted and proper governmental organization to be included at any time.

Failure to name, or improper naming of a governmental organization or a governmental representative shall be subject to the provisions of these rules relating to parties. When a governmental representative is named as a party in his individual name or in his individual name along with his official title, the judgment, in an appropriate case, may bind him in his individual capacity, but no judgment against him in his individual capacity shall be rendered against him unless he is so named.

No action against a governmental organization or against a governmental representative in his official capacity shall be abated, affected or delayed because of the death, incapacity or replacement of a named or unnamed governmental representative, or because of the fact that the name, functions or existence of the governmental organization have been altered or terminated.

In either case the action shall proceed without substitution of successors who shall be bound by the judgment in their official capacity. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.

Unwilling plaintiffs who could join under this rule may be joined by a plaintiff as defendants, and the defendant may make any persons who could be joined under this rule parties by alleging their interest therein with a prayer that their rights in the controversy be determined, along with any counterclaim or cross-claim against them, if any, as if they had been originally joined as parties. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him, and may order separate trials of the entire case or separate issues therein, or make other orders to prevent delay or prejudice.

Misjoinder of parties is not ground for dismissal of an action. Except as otherwise provided in these rules, failure to name another person as a party or include him in the action is not ground for dismissal; but such omission is subject to the right of such person to intervene or of an opposing party to name or include him in the action as permitted by these rules.

Subject to its sound discretion and on motion of any party or of its own initiative, the court may order parties dropped or added at any stage of the action and on such terms as are just and will avoid delay. Any claim against a party may be severed and proceeded with separately. Incorrect names and misnomers may be corrected by amendment under Rule 15 at any time.

The court shall have venue and authority over all persons or claims required to be joined or permissively joined, impleaded or included by intervention, interpleader, counterclaim or cross-claim if it has venue or is authorized to determine any claim asserted between any of the parties thereto, notwithstanding any requirement of venue or of jurisdiction over the subject-matter applicable to other claims or other parties.

The court may transfer the proceedings to the proper court if it determines that venue or authority of the court is dependent upon a claim, or a claim by or against a particular party which appears from the pleadings, or proves to be a sham or made in bad faith; and if another action is pending in this state by or against a person upon the same claim at the time he becomes a party, the court may dismiss the action as to him, or in its sound discretion, it may order all or part of the proceedings to be consolidated with the first pending action.

Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that he is not liable in whole or part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim.

The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in Rule This rule shall extend, but not diminish or reduce the right to interpleader provided by statute. A complaint or answer seeking interpleader under Rule 22 A is sufficient if:. The complaint may also show, if such is the fact, that the person seeking interpleader has deposited with the court money, or property, or a bond securing performance. It also may include appropriate prayers for equitable relief, including injunction against other nonpending suits by the parties interpleaded, against the person seeking interpleader or among themselves.

Except to the extent that the issues are raised by the pleadings of the person seeking interpleader, the claims of those interpleaded, whether dependent or independent, may be pleaded in the same manner as if the claims were counterclaims or cross-claims under Rule 13 and within the time as prescribed by Rule 6. Incorrectness of the interpleader under Rule 22 A is grounds for dismissal as provided in Rule 12 B 6. New service against defaulting parties required by Rule 5 A shall not apply to the responsive pleadings filed by parties named to interpleader proceedings under Rule 22 A unless ordered by the court.


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Trial of the issues may be held at one [1] hearing or in successive stages at the sound discretion of the court and subject to Rule Any party seeking interpleader, as provided in subdivision A of this rule, may deposit with the court the amount claimed, or deliver to the court or as otherwise directed by the court the property claimed, and the court may thereupon order such party discharged from liability as to such claims, and the action continued as between the claimants of such money or property. One or more members of a class may sue or be sued as representative parties on behalf of all only if:.

An action may be maintained as a class action if the prerequisites of subdivision A are satisfied, and in addition:. The matters pertinent to the findings include:. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits. The notice shall advise each member that:. The judgment in an action maintained as a class action under subdivision B 3 , whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision C 2 was directed, and who have not requested exclusion, and whom the court finds to be members of the class.

In the conduct of actions to which this rule applies, the court may make appropriate orders:. The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to time. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.

Nothing in this rule is intended to limit the trial court from approving a settlement that does not create residual funds. The court may disburse the balance of any residual funds beyond the minimum percentage to the Indiana Bar Foundation or to any other entity for purposes that have a direct or indirect relationship to the objectives of the underlying litigation or otherwise promote the substantive or procedural interests of members of the certified class.

In a derivative action brought by one or more shareholders or members or holders of an interest in such shares or membership, legal or equitable, to enforce a right of a corporation or of an unincorporated association, the corporation or association having failed to enforce a right which may properly be asserted by it, the complaint shall be verified and shall allege that the plaintiff was a shareholder or member or holder of an interest, legal or equitable, in such shares or membership at the time of the transaction or any part thereof of which he complains or that his share or membership thereafter devolved on him by operation of law, and the complaint shall also allege with particularity the efforts, if any, made by the plaintiff, to obtain the action he desires from the directors or comparable authority and the reasons for his failure to obtain the action or for not making the effort.

The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the shareholders or members similarly situated in enforcing the right of the corporation or association. The action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to shareholders or members in such manner as the court directs.

In addition to an action brought by or against an unincorporated association under Rule 17 E , an action may be brought against the members of an unincorporated association as a class by naming certain members as representative parties if it appears that the members bringing suit or served with process or the representative parties will fairly and adequately protect the interests of the association and its members.

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In the conduct of the action the court may make appropriate orders corresponding with those described in Rule 23 D , and the procedure for dismissal or compromise of the action shall correspond with that provided in Rule 23 E. Upon timely motion anyone shall be permitted to intervene in an action:.

Upon timely filing of his motion anyone may be permitted to intervene in an action:. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive administrative order, the governmental unit upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and set forth or include by reference the claim, defense or matter for which intervention is sought.

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Modes of Commencing an Action

Intervention after trial or after judgment for purposes of a motion under Rules 50, 59, or 60, or an appeal may be allowed upon motion. The motion for substitution may be made by the court, any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of summons. Motion for substitution may be made before or after judgment, and if substitution is not reflected in the papers upon which the appeal is based, any party shall, by notice filed with the Clerk of the court on appeal, advise the court on appeal of the substitution of any party.

However, if the case is returned to a lower court after the judgment or order upon appeal becomes final, the motion may then be made in such lower court. The death may be suggested upon the record and the action shall proceed in favor of or against the surviving parties. If a party becomes incompetent, the court upon motion served as provided in subdivision A of this rule may allow the action to be continued by or against his representative in the same manner as against a decedent party.

In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision A of this rule.

The proper party or parties to be substituted for the party who dies under subsection 1 of subdivision A of this rule includes:. A claim based upon a judgment against a party who dies before or after judgment is entered shall be allowed by the court administering his estate even though the claim is not filed with such court if the representative of such estate is substituted as a party within the time when such claim or judgment could have been filed as a claim against the estate under the probate code. Proceedings following substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded.

An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution. Parties may obtain discovery by one or more of the following methods:. Unless the court orders otherwise under subdivision C of this rule, the frequency of use of these methods is not limited. In addition to service under Rule 5 B or a. If transmitted on disk, each disk shall be labeled, identifying the caption of the case, the document, and the word processing version in which it is being submitted.

If more than one disk is used for the same document, each disk shall be labeled and also shall be sequentially numbered. If transmitted by electronic mail, the document must be accompanied by electronic memorandum providing the forgoing identifying information. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:.

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

The court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26 C. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37 A 4 apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is.

Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision B 1 of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

If information is produced in discovery that is subject to a claim of privilege or protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim.

If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved. Upon motion by any party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county where the deposition is being taken, may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:.

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Trial Rule 37 A 4 apply to the award of expenses incurred in relation to the motion. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.

If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause. The court may specify conditions for the discovery. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:.

Before any party files any motion or request to compel discovery pursuant to Rule 37, or any motion for protection from discovery pursuant to Rule 26 C , or any other discovery motion which seeks to enforce, modify, or limit discovery, that party shall:. This statement shall recite, in addition, the date, time and place of this effort to reach agreement, whether in person or by phone, and the names of all parties and attorneys participating therein. If an attorney for any party advises the court in writing that an opposing attorney has refused or delayed meeting and discussing the issues covered in this subsection F , the court may take such action as is appropriate.

The court may deny a discovery motion filed by a party who has failed to comply with the requirements of this subsection. Depositions before action or pending appeal. A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court in which the action may be commenced, may file a verified petition in any such court of this state. The petition shall be entitled in the name of the petitioner and shall state facts showing:.

The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty [20] days before the date of hearing the notice shall be served in the manner provided in Rule 4 for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in Rule 4, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent.

If any expected adverse party is a minor or incompetent the provisions of Rule 17 C apply. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject-matter of the examination or written interrogatories.

The depositions may then be taken in accordance with these rules; and the court may make orders of the character provided for by Rules 34 and For the purpose of applying these rules to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. If a deposition to perpetuate testimony is taken under these rules or if, although not so taken, it would be admissible in evidence in the court of the state in which it is taken, it may be used in any action involving the same subject-matter subsequently brought in a court of this state in accordance with the provision of Rule If an appeal has been taken from a judgment of any court or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in such court.

In such case the party who desires to perpetuate the testimony may make a motion in the court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the court. The motion shall show:. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by Rules 34 and 35, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the court.

This rule does not limit the power of a court to entertain an action to perpetuate testimony. The filing or custody of any deposition or evidence obtained under this rule shall be in accordance with Trial Rule 5 E. Within the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States, or of the state of Indiana, or of the place where the examination is held, or before a person appointed by the court in which the action is pending.

A person so appointed has power to administer oaths and take testimony. In a foreign country, depositions may be taken:. A commission or a letter rogatory shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases.

A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules. Unless otherwise permitted by these rules, no deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action.

A deposition may be taken outside the state as provided in subdivisions A and B of this rule, and the deponent may be requested to produce documents and things, and may also be requested to allow inspections and copies as provided in Rule 34 to submit to examination under Rule Protective orders may be granted by the court in which the action is pending and by the court where discovery is being made. Enforcement orders may be made by the court where the discovery is sought, and enforcement orders and sanctions may be made by the court where the action is pending as against parties and as against witnesses subject to the jurisdiction of the court.

When no action is pending, a court of this state may authorize a deposition to be taken outside this state of any person and upon any matters allowed by Rule A court of this state may order a person who is domiciled or is found within this state to give his testimony or statement or to produce documents or other things, allow inspections and copies and permit physical and mental examinations for use in a proceeding in a tribunal outside this state.

The order may be made upon the application of any interested person or in response to a letter rogatory and may prescribe the practice and procedure, which may be wholly or in part the practice and procedure of the tribunal outside this state, for taking the testimony or statement or producing the documents or other things.

To the extent that the order does not prescribe otherwise, the practice and procedure shall be in accordance with that of the court of this state issuing the order. The order may direct that the testimony or statement be given, or document or other thing produced, before a person appointed by the court.

The person appointed shall have power to administer any necessary oath. A person within this state may voluntarily give his testimony or statement or produce documents or other things allowing inspections and copies and permit physical and mental examinations for use in a proceeding before a tribunal outside this state. Whenever an adjudicatory hearing, including any hearing in any proceeding subject to judicial review, is held by or before an administrative agency, any party to that adjudicatory hearing shall be entitled to use the discovery provisions of Rules 26 through 37 of the Indiana Rules of Trial Procedure.

Such discovery may include any relevant matter in the custody and control of the administrative agency. Protective and other orders shall be obtained first from the administrative agency, and if enforcement of such orders or right of discovery is necessary, it may be obtained in a court of general jurisdiction in the county where discovery is being made or sought, or where the hearing is being held.

This rule does not repeal or modify any other law of this state permitting another procedure for obtaining discovery for use in this state or in a tribunal outside this state, except as expressly provided in these rules. Discovery after judgment may be had in proceedings to enforce or to challenge the judgment. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of twenty [20] days after service of summons and complaint upon any defendant except that leave is not required:.

Various decisions of the courts in this country and elsewhere have stressed this important principle.


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  8. In such a case the least a party can do if he requires a substitution of or amendment of his cause of action, is to apply for an amendment. Ltd AD where at page it was stated as follows But within those limits the court has a wide discretion. For pleadings are made for the court, not the court for pleadings. And where a party has had every facility to place all the facts before the trial court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been.

    Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as much bound by the pleadings of the parties as they are themselves. It is not part of the duty or function of the court to enter upon any enquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties.

    To do so would be to enter the realm of speculation. The court does not provide its own terms of reference or conduct its own inquiry into the merits of the case but accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings. In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to.

    It follows that the pleadings enable the parties to decide in advance of the trial what evidence will be needed. From the pleadings the appropriate method of trial can be determined. They also form a record which will be available if issues are sought to be litigated again. The matters in issue are determined by the state of pleadings at the close if they are not subsequently amended. But pleadings continue to play an essential part in civil actions, and although there has been … a wide power to permit amendments, circumstances may arise when the grant of permission would work injustice or, at least, necessitate an adjournment which may prove particularly unfortunate in trial with a jury.

    For the primary purpose of pleadings remains, and it can still prove of vital importance. That purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it. This is because the pleading is the source from which many other consequences flow in the life of the litigation from filing at first instance through to final resolution in the High Court.

    The pleading will be used as the reference point for the seeking of particulars, the administering of interrogatories which is virtually extinct , the obtaining of an order for discovery if the court is satisfied this is required, the issue of subpoenas, the calling of evidence, the relevance and admissibility of evidence, the closing arguments, the reasons for judgments and the availability of arguments on appeal. The position is therefore settled that pleadings serve the important purpose of clarifying or isolating the triable issues that separate the two litigants. It is on those issues that a defendant prepares for trial and that a court is called upon to make a determination.

    Therefore a party who pays little regard to its pleadings may well find itself in the difficult position of not being able to prove its stated cause of action against an opponent. From the evidence, it is clear that the appellant was not involved in the transactions that took place in China. It does not conduct operations outside Zimbabwe. It only got involved, as agent of Mediterranean Shipping, in tracking the container once it landed in Beira and in having it transported to Mutare Dry Port.

    It was also clear from the evidence that, as agent of Mediterranean Shipping, the appellant was supposed to receive payment from Mediterranean Shipping for its role in checking the Bill of Lading and ensuring that the cargo was delivered to Mutare Dry Port. The fact that the appellant invoiced the respondent for handling fees does not, on its own, show the existence of a contract. The exact relationship that existed between the two parties was not established.

    In the circumstances, the court a quo should have granted the application for absolution from the instance which was made at the close of the case for the plaintiff. The court a quo accepted that the respondent had not produced documents to show the existence of a contract. The court further accepted that the respondent had entered into a shipping agreement with Mediterranean Shipping in Hong Kong and that the appellant was not involved.

    The court also accepted that the appellant only got involved in supervising the movement of the container from Beira to Mutare at the behest of Mediterranean Shipping. The court further found that although the parties had been involved in these transactions over the years, the respondent did not know that the appellant was merely an agent of Mediterranean Shipping. Having made these findings,that really should have been the end of the matter.

    The suggestion that, judging by the conduct of the parties, there must have been some other undefined contract between them, is not borne by the evidence. In any event, the court did not state what type of contract this may have been and what its terms were. Having abandoned its claim based on a contract of agency, it was not for the court a quo to find, as it did, that there was some other undefined contract.