state proceedings in civil cases, and to confer upon suitors in courts of the United States the advantage of remedies provided by state legislation, yet that it was also the intention to reach such uniformity often largely through the discretion of the federal courts, exercised in the form of general rules, adopted from time to time, and so regulating their own practice as may be necessary or convenient for the advancement of justice and the prevention of delays in proceedings."
In Indianapolis & St. L.R. Co. v. Horst, 93 U.S. 291, 300, 23 L. Ed. 898, it was said: "The conformity is required to be 'as near as may be,' not as near as may be possible, or as near as may be practicable. This indefiniteness may have been suggested by a purpose; it devolved upon the judges to be affected the duty of construing and deciding, and gave them the power to reject, as Congress doubtless expected they would do, any subordinate provision in such state statutes which, in their judgment, would unwisely incumber the administration of the law, or tend to defeat the ends of justice, in their tribunals."
The language just quoted makes it perfectly evident that it was never the intent of the framers of the Conformity Act to bar the Supreme Court from making wise modifications or alterations in Federal procedure, by rules of universal application in all the District Courts, notwithstanding that state rules might differ. Indeed, it is apparent that a literal and rigorous construction of the words of the Conformity Act would operate to bar the Federal Courts from adopting any rule of procedure treating of a subject also dealt with by the state courts, unless all the state courts were governed by the same rule. This reductio ad absurdum demonstrates the wisdom of the courts in construing the words of the Conformity Act "as near as may be" to leave a permissible latitude within the limits of which state rules of practice, pleading and procedure may be disregarded in the interest of the better administration of the law, to the extent shown by the authorities cited.
It is true that while Equity Rule 30, 28 U.S.C.A. following section 723, dealing with counterclaims, was in force, prior to the adoption of the new Rules, the state rule with regard to the propriety of counterclaims of various kinds was almost universally adhered to in the Federal Courts. This can be explained, however, by the difference of opinion existing in the Federal Courts as to the construction of Equity Rule 30, and the conflicting decisions as to the permissibility of counterclaims thereunder. See cases collected under Equity rules, Note 472, 28 U.S.C.A. following section 723. As already stated, however, there is no ambiguity in Rule 13 of the new Rules; and that Rule must be held to prevail over any inconsistent state rule.
It has been said in Jeffrey-Nichols Motor Co. v. Hupp Motor Car Corporation, D.C., 41 F.2d 767, 769, that Federal Rules of Court where conflicting with state practice are controlling: "So far as the provisions of the Judicial Code and the rules of this court are in conflict with the state practice, the former must control, notwithstanding the Conformity Act (28 U.S.C.A. § 724). Hill v. Walker, supra [8 Cir., 167 F. 241]; Munter v. Weil Corset Co., Inc., 261 U.S. 276, 43 S. Ct. 347, 67 L. Ed. 652."
And in Moore v. Illinois Cent. R. Co., D.C., 24 F.Supp. 731 -- a case arising under the new Rules -- it was similarly held that those Rules prevail over inconsistent state rules. The Court said (page 733):
"However, this question having arisen since the federal rules of civil procedure became effective, the statutes of Mississippi are not controlling. The federal rules of civil procedure control in this court with reference to pleadings.
* * *
"Mississippi practice, as hereinbefore shown, was one of liberal amendments, but even in those states where there is a restrictive state practice these federal rules supersede, and the federal courts are no longer obliged to follow any restrictive practice of procedure of the state, -- Moore's Federal Practice, page 800 and the authorities therein cited.
"The entire spirit of all the rules as adopted is to the effect that controversies shall be decided upon the merits. The very first rule provides that they shall be construed to secure the just, speedy and inexpensive determination of every action. Rules 7 to 14, inclusive, 28 U.S.C.A. following section 723c, deal particularly with pleadings both of the plaintiff and the defendant, and it is not difficult to reach the conclusion that their purpose is to insure a fair trial upon the merits without unreasonable delay and to place upon counsel representing a party much responsibility."
I hold, therefore, that under the provisions of Rule 13 of the Federal Rules of Civil Procedure a defendant in a suit arising out of an alleged tort may state as a counterclaim a claim arising out of an assumpsit; and that, accordingly, the counterclaim in the instant case is proper.
And now, to wit, the 30th day of August, 1939, the motion to strike the counterclaim from the answer is denied.
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