Fidelity Deposit Company of Maryland v. United States (187 U.S. 315)/Opinion of the Court
The principal assignments of error are reducible to these contentions: (1) The court had no power to enact the rule; (2) that the rule was invalid, in that it deprived defendants of due process of law and the right of trial by jury, in contravention of the Constitution of the United States and 'the mode of proof of trial' prescribed by Revised Statutes, §§ 861 et seq. 

The rule was formerly number 75 and has existed a long time. The court of appeals of the District has sustained its validity in a number of cases. This court also sustained its validity in Smoot v. Rittenhouse [27 Wash. L. Rep. 741] decided January 10, 1876.

The case is questioned as authority because, it is said, that 'if this court upheld a rule of such important character and doubtful validity it would give the grounds of its decision.' But the objection assumes that the court had doubts. The better inference is that the court regarded the grounds of challenge to the validity of the rule as without foundation. And its validity was challenged and necessarily passed on, which disposes of contention that the decision was based on another point.

2. There is but one element in this contention,-the right of a jury trial. In passing upon it we do not think it necessary to follow the details of counsel's elaborate argument. In Smoot v. Rittenhouse [27 Wash. L. Rep. 741] the validity of the rule was sustained, as well as the power of the court to make it. If it were true that the rule deprived the plaintiff in error of the right of trial by jury, we should pronounce it void without reference to cases. But it does not do so. It prescribes the means of making an issue. The issue made as prescribed, the right of trial by jury accrues. The purpose of the rule is to preserve the court from frivolous defenses, and to defeat attempts to use formal pleading as means to delay the recovery of just demands.

Certainly a salutary purpose, and hardly less essential to justice than the ultimate means of trial. And the case at bar illustrates this. It certainly does not seem unreasonable to charge one who has become responsible for the performance of an act by another with knowledge of that act or with means of ascertaining it, so as to state a defense within the liberal interpretation of the rule declared by the court of appeals.

As early as 1879 the supreme court of the District recited the history of the rule, and explained its purpose. 'It is a rule,' the court said, 'to prevent vexatious delays in the maturing of a judgment where there is no defense. . . . Now, what does the rule mean, this being its office? It is couched in very plain language. It says the defendant shall set out his grounds of defense, and swear to them. It does not mean a defense in all its details of incident and fact, but the foundation of the defense. That is all. Those grounds ought not to be vague and indefinite. They should have significance and meaning, and should express the idea of defense upon the ground to which they are addressed. It was never contemplated that this rule required a party to follow his case through all the lights and shadows of the evidence in it. That would be to hold it essential that he should try his case in his plea.' National Metropolitan Bank v. Hitz, MacArth. & M. 198.

This interpretation was affirmed in Cropley v. Vogeler, 2 App. D. C. 28; see also 2 App. D. C. 340; Gleason v. Hoeke, 5 App. D. C. 1, 12 App. D. C. 161; Bailey v. District of Columbia, 4 App. D. C. 356.

And the facts stated in the affidavit of defense will be accepted as true.  Strauss v. Hensey, 7 App. D. C. 289, 36 L. R. A. 92.

It would seem a logical result of the argument of plaintiff in error that there was a constitutional right to old forms of procedure, and yet it seems to be conceded that Congress has power to change them, even to the enactment of rule 73. The concession of that power destroys the argument based on the Constitution, and whether Congress exercised the power directly or delegated it to the supreme court of the district of Columbia can make no difference. And that such power had been delegated to the supreme court of the District was virtually decided in Smoot v. Rittenhouse, 27 Wash. L. Rep. 741.

3. It is urged that the causes of action set out in the declaration 'are not within the purview of the rule.' By 'purview of the rule' is meant, as counsel explains, the spirit of the rule, and that, it is urged, intends only 'money demands, pure and simple,' not contracts of suretyship or conditional obligations. It is, however, conceded that the causes of action are within the letter of the rule, and we are not disposed to make exceptions based on disputable considerations of its spirit against the interpretation of the court, which has administered the rule for many years.

4. Plaintiff in error asserts the sufficiency of its affidavit, and asserts the insufficiency of that of defendant in error. In support of the latter assertion, it is claimed, 'copies of the bonds in suit and of the contracts between the District and Vinson should have been filed.' We may adopt the reply of the court of appeals of a like claim in that court. That learned court said:

'There is no merit in the formal objections urged to the declaration and supporting affidavit of the plaintiff. The bond is alleged to have been executed in accordance with the formal provision of the statute which makes it a public record, and profert of it was not required to be made. It is nothing more than a simple statutory obligation to pay any and all demands against the contractor of the nature claimed by the plaintiff. It does not appear that there was any formal written contract between the contractor and the plaintiff relating to the materials furnished by the latter, upon the necessary interpretation of which the liability in whole or in part depends. For the purposes of recovery it was sufficient to say, as was done, that plaintiff agreed to furnish certain materials at a certain price, for use, by the contractor, that he did furnish the same in specific amounts, and that the contractor received them and then refused to pay the sum due for them.'

The affidavit of plaintiff in error was not sufficient. The rule requires the affidavit, not only to deny the right of the plaintiff, but to state also in precise and distinct terms the grounds of defense, 'which must be such as would, if true, be sufficient to defeat the plaintiff's claim in whole or in part.' See cases cited above.

Finding no error in the record, the judgment is affirmed. 

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