one on contract to one in tort, and vice versa, from one at law to one in equity and vice versa, from a special proceeding or action under or pursuant to any writ or any action and vice versa. The judgment in all cases of mistaken remedy shall be respondent ouster and for costs, the latter in the discretion of the court, but with leave to amend and proceed in that court or some other designated court; or part in that court and part in some other court in one or several actions or proceedings as justice may require."

Speaking of this the late Chief Justice Winslow said:

"The beneficent effect of this provision can hardly be overestimated. It means that it will no longer be necessary to kickthe plaintiff out of the back door of the court room (with costs) in order that he may re-enter by the front door in a different garb, It means that we are losing interest in the mere niceties of procedure and gaining interest in the accomplishments of justice completely and without denial, promptly and without delay." Jilek vs. Zahl, 162 Wis. 157, 155 N. W. 909.

Waiver of Jury Trial by Motion to Direct Verdict.-Reference has already been made to Section 2858m, governing procedure in cases where a special verdict was demanded. Under the practice existing in Wisconsin it was not an infrequent thing for each party at the close of the evidence to move the court to direct a verdict in his favor. Such double motions put upon the trial court the burden of making a correct determination, as the opposite party would have a right of review upon appeal, and if it should turn out, as it often did, that there was a jury question as to one of the litigated issues, the court was likely to fall into error. To remedy this situation the Supreme Court suggested, in accordance with the practice in the federal courts and in the courts of some other states, the enactment of Section 2857a, by which it is provided that in a jury trial, when each party shall without reservation move the court to direct a verdict, such motion shall be considered as equivalent to a stipulation by the parties, waiving a jury and submitting the entire case to the court for decision upon the facts as well as the law. This section has only been twice before the Supreme Court, and in neither case was its application questioned, nor was there any call for the construction of the statute, if indeed any construction is possible. Where, at the close of the evidence, the plaintiff moved to dismiss the defendant's counterclaim, and the defen

dant moved for judgment in its behalf, and the dismissal of the counterclaim would have resulted necessarily in a judgment for the plaintiff, it was held under this section that such motions constituted a waiver of a jury trial, and a submission to the court for its decision of the entire case. Ott vs. Cream City Sand Company, 166 Wis. 228, 164 N. W. 1005. See also Jones vs. Citizens' Savings & Trust Company, 168 Wis. 646, 171 N. W. 648.

I shall not refer to that part of Chapter 219 of the Laws of 1915 relating to costs, as it covers matters which are not of general interest.

All Parties Brought Up on Appeal; Motion for Review by Respondent. The last provision of Chapter 219 of the Laws of 1915 to which I shall make reference is that creating Section 3049a. While this statute has not been before the court for consideration, it has been applied in a large number of cases in practice. Under its provisions parties who are jointly or severally bound by judgment must, in case an appeal is taken by one party, within thirty days take their appeal or their right of appeal is deemed to be waived. It authorizes the Supreme Court at any time after an appeal is taken to bring in additional parties upon its own motion or upon application of one of the original parties; and it also provides that upon an appeal a respondent may have a review of the rulings of which he complains, by serving upon the appellant at any time before the case is set down for a hearing in the Supreme Court, a notice stating in what respect he asks for a review, reversal, or modification of any part of the judgment appealed from. Such notice, under the provisions of Sec. 3049a in practical effect operates as a cross appeal. Birdsong & Company vs. Marty, 163 Wis. 516, 158

N. W. 289.

Declaratory Relief.-The most recent amendment to our procedural law is Section 2687m, which provides that equitable actions may be maintained to obtain declaratory relief. No cases have, as yet, arisen under this law. The purpose of the law is plain. To what extent it may be acted upon no one may say. The history of this legislation, together with a statement of its objects and purposes, is found in an article by Justice A. J. Vinje, 4 Marquette Review, p. 106 (April, 1920).

Conclusion. No one appreciates more fully than I the fragmentary character of this presentation. It was my judgment that a complete outline would be more valuable than a thorough discussion of any one of the laws referred to. Statutes of themselves can accomplish little, and unless legislative enactments reflect the sentiment of the bench and the bar, they fail in a large degree to accomplish their purpose. The significant thing in relation to the progress of judicial procedure in Wisconsin is that it has come about largely through the initiative of judges and the leading members of the bar. The real situation is not fairly indicated by reference to legislative enactments or reported decisions. A large factor in our progress has been the attitude of the bar toward our remedial legislation. Lawyers are less and less insistent upon mere technical practices, and more and more concerned with the trial of their causes upon their merits. Thirty years ago 40 per cent of the questions treated in the opinions of the Supreme Court were practice questions; now not over 20 per cent of the questions treated relate to practice, despite the fact that there have been many changes in procedural matters. The public has rightly become very impatient over needless procedural delays. The duty of the bench and bar in this respect cannot be too often emphasized. It was most forcefully presented by Hon. Elihu Root at Chicago in 1916. The conditions of which he spoke somewhat in prospect then are now largely realities. We should endeavor more and more to approach the ideal outlined by Mr. Root (Address American Bar Association, 1914), when a controversy in court will be shorn largely of its technicalities, and resemble more nearly the effort of one neighbor to settle a dispute between two other neighbors. We in Wisconsin believe that it can be done and an orderly administration of the law in accordance with fundamental principles of justice still be maintained. If our efforts and experience contribute to real progress in judicial administration and procedure, it will bring to us added satisfaction.

THE DECLARATORY JUDGMENT.

BY

FRANK K. DUNN,

OF ILLINOIS.

Since justice is the great interest of man on earth, any improvement in the method of its administration is of concern to those engaged in that work. I intend to consider briefly a form of procedure in the administration of justice which, though well enough known in other countries, has been little used in the United States. It is the declaratory judgment by which the parties to a potential controversy may, in advance of any wrong done, breach of contract committed, or cause of action accrued, obtain from a court a final and definitive judgment as to their legal rights. Such a proceeding seems completely at variance with the usual conception of the purpose of a court-that is, as it was primarily understood wherever the common law has prevailed-the redress of wrongs. Primitively the conception of justice as administered by courts under that system was only retributive or vindictive justice. While justice was regarded as the giving to every one of his due, courts did not undertake to advise or adjudicate beforehand in any case what was due. It was only when there had been a failure to render to one what was due, a breach of the duty owing by one to another, that the court could be called into action. Justice was administered only against wrong-doers in vindication of rights invaded or dues. withheld. All common-law actions were founded upon a breach of contract or of a duty imposed by law upon the defendant, or upon a tort done by him. Equitable actions were equally based upon wrongs done or threatened, and neither at law nor in equity would the court act except in a case where redress might be actually granted by a judgment or decree. Courts of equity would not generally, any more than courts of law, entertain suits to declare the rights of parties on a state of facts which had not yet arisen and might never arise, and the cases are not infrequent in which the courts have refused to express opinions for the guidance of parties on questions not requiring determination in connection with the granting or refusing of relief. This is the (383)

view of the proper function of courts prevailing in this country today, except as it has been modified in some states by special statutes authorizing the removal of clouds upon titles, and the construction of wills even where no trust is involved, and conferring jurisdiction in some other special cases, and except also the general ground of equitable jurisdiction over trusts and the instruction and direction of trustees. Recently, however, the subject of declaratory judgments and the extensive and varied use which has been made of that procedure in the English courts has received considerable attention in this country. Within a few months able and interesting articles have appeared, written by Professor Sunderland of the University of Michigan and by Professor Borchard of Yale University, in which are set forth the historical development of the declaratory judgment in the countries of continental Europe, in Scotland and in England and her colonies and dependencies, and illustrations of the use and the value of the procedure in the administration of justice. Other writers have favored the adoption of this procedure and the American Judicature Society in its Bulletin XIV has submitted an article of eight sections providing for the exercise of such jurisdiction. In the Sixty-fifth Congress a bill to authorize the federal courts of the United States to render declaratory judgments was introduced in the Senate, but was not reported out of the committee. Statutes were passed in three of the states of the union last year which provide for the obtaining of a judgment declaratory of the legal rights of the parties. The Michigan statute provides that "no action or proceeding in any court of record shall be open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby, and the court may make binding declarations of rights whether any consequential relief is or could be claimed or not, including the determination, at the instance of any one claiming to be interested under a deed, will or other written instrument, of any question of construction arising under the instrument and a declaration of the rights of the parties interested." Declarations of rights and the determination of questions of construction may be obtained by ordinary proceedings at law or in equity or by petition on either the law or the equity side of the court as the nature of the case may require, and, where only a declaration of rights