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The recent spread of the summary judgment procedure in American practice may be traced in substance to the impetus afforded by a simple unheralded New York rule of court of 1921. At that time the Empire State adopted with considerable fanfare a new Civil Practice Act, supposed to include the best features of English procedure, although later experience has shown certain distressing omissions and inconsistencies. The statute did not contain any provision for the summary judgment. The judges, however, in adopting rules of civil practice to supplement the Practice Act set up a rule for the purpose, Rule 113, which, as we now see, has had substantial vogue in that state and elsewhere. Perhaps that experience has some significance as to the potentialities of the rule-making process generally! The model naturally was the English rule which since the middle of the nineteenth century had provided this ready means for disposition of claims on bills of exchange and promissory notes, later extended to all but a few unusual and disfavored actions, such as fraud and libel. It is true that New Jersey had adopted the English provision yet earlier in 1912, and Michigan has had a workable, though limited, act since 1915. And there were still earlier American analogies, such as the motion practice in Virginia, which has long been a means of effective initiation of litigation by motion. Nor is there anything strange in a motion for judgment summarily entered when no defense is shown or when the defense appears to be sham or frivolous. The real step is in the means permitted to demonstrate the sham or false character of the defense, even where it might appear fair on the face of the pleading, through materials outside the pleadings, notably affidavits so particularized as to require like answering affidavits to disclose the genuineness of the issue asserted. The obvious difficulty was the constitutional right of trial by jury. When the constitutionality of the procedure was established in New York, and the success of the new innovation was ably publicized by noteworthy articles," its popularity grew and imitation followed.
Date of Authorship for this Version
The Summary Judgment, 36 Minnesota Law Review 567 (1952)