15

If the plaintiff in error or appellant fails to docket the case and file the record in time, he may for good cause shown obtain from the judge who signed the citation or a judge of the appellate court an order enlarging his time either before or after its expiration, at least before the term succeeding the return-day has expired." This order must be filed with the clerk of the appellate court. If the plaintiff in error or appellant fails to comply with this rule, the defendant in error or appellee may have the case docketed and dismissed upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the case, and certifying that such writ of error or appeal was duly sued out and allowed.16 After such dismissal, the plaintiff in error or appellant can only by special leave of the court docket the case and file the record.1

It seems that if the record is not filed in the appellate court at the term succeeding that at which the appeal is allowed or the writ of error issued, the appeal or writ of error becomes void, and the appellate court will of its own motion dismiss the appeal.18 Where an appellant or plaintiff in error without fault on his part was prevented from filing the transcript by the fraud of his opponent or the contumacy of the clerk or the order of the court below, his time to file the transcript was enlarged.19 A mandamus or other appropriate order may issue

14 S. C. Rule 9; C. C. A. Rule 16. An order extending the time to file the return, made by a district judge who is not a member of the Circuit Court of Appeals when he signs it, is a nullity. West v. Irwin, 54 Fed. R. 419, 420.

15 S. C. Rule 9; C. C. A. Rule 16. 16 Ibid.

17 Ibid.

18 Castro v. U. S., 3 Wall. 46; Small v. Northern Pac. R. Co., 134 U. S. 514; West v. Irwin (C. C. A.), 54 Fed. R. 419. See Amendment of Rules, 137 U. S. 710; C. C. A. Rules 14, 16.

19 U. S. v. Gomez, 3 Wall. 752; Ableman v. Booth, 21 How. 506, 512. The failure to docket in time is not ex

cused by the fact that the clerk

below agreed to file the record, and

it was left with him for that pur. purpose, Fayolle v. Texas & Pac. Ry. Co., 124 U. S. 519; nor by his certificate that he could not, consistently with his other duties, return a transcript of the record within the required time, Sturgess v. Harrold, 18 How. 40; nor by his mistake as to the return-day, Richardson v. Green, 130 U. S. 104. But where the transcript was filed within the time required by the rule, but a few days after the return-day, the delay was excused. Florida v. Charlotte H. Ph. Co. (C. C. A.), 70 Fed. R. 883; Farmers' L & Tr. Co. v. Chicago & N. P. R. Co. (C. C. A.), 73 Fed. R. 314; McClellan v. Pyeatt (C. C. A.), 49 Fed. R. 259.

to compel the clerk to certify to a transcript of the record; 20 but a failure to move for a mandamus will not necessarily be considered laches by the plaintiff in error." A case which is sought to be reviewed both by appeal and by writ of error need not be docketed twice.22

The plaintiff in error or appellant must on docketing a cause and filing the record enter into an undertaking to the clerk, with surety to his satisfaction, for the payment of his fees, or otherwise satisfy him in that behalf.23 Where the transcript had been filed in time, but through inadvertence a fee bond had not been given to the clerk, the appellant was permitted to docket the cause after the term, in a case where no motion to dismiss had been made. The defendant in error or appellee may, if he chooses, docket the cause and file the record. Upon the filing of a transcript of the record, the appearance of the counsel for the party docketing the cause should be entered. If the defendant in error files the transcript or dockets the cause before the time has expired, and subsequently the plaintiff in error files the transcript and dockets the cause in due time, the case on the plaintiff's docketing will stand and on the defendant's docketing be dismissed. It has been held that a writ of error or appeal may be dismissed because no assignment of error is sent up with the return.27

26

A writ of error or appeal will not be dismissed because the transcript is defective, if properly authenticated.28 If the transcript of the record is defective, the remedy is a certiorari for a diminution of the record.29 A motion for such a writ should be made at the first term of the entry of the cause, unless upon

20 U. S. v. Booth, 18 How. 476; U. S. v. Gomez, 3 Wall. 572. But not, it has been held, to compel him to transmit a particular paper. Starcke v. Klein (C. C. A.), 62 Fed. R. 502.

21 U. S. v. Gomez, 3 Wall. 752. 22 Hurst v. Hollingsworth, 94 U. S. 111; Plymouth G. M. Co. v. Amador & S. C. Co., 118 U. S. 264.

23 S. C. Rule 10.

24 Edwards v. U. S., 102 U. S. 575; contra, Green v. Elbert, 137 U. S. 615. 25 S. C. Rule 9.

26 Hartshorn v. Day, 18 How. 28; Davis v. Corbin, 113 U. S. 687.

27 S. C. Rule 35; C. C. A. Rule 11; Dufour v. Lang (C. C. A.), 54 Fed. R. 913. But see School Dist. of Ackley v. Hall, 106 U. S. 428; Gumbel v. Pitkin, 113 U. S. 545; S. C. Rule 35, as first adopted, 137 U. S. 709.

28 S. C. Rule 14; C. C. A. Rule 18; Nashua & L. R. Corp. v. Boston & L R. Corp. (C. C. A.), 61 Fed. R. 737.

29 Ibid.; U. S. v. Davenport's Heirs, 142 U. S. 704; U. S. v. Gomez, 1 Wall. 690; Missouri, K. & T. Ry. Co. v. Dinsmore, 108 U. S. 30.

34

30

special cause shown an application at a later term is permitted. An application made within a reasonable time after the record is printed will usually be granted. The appellate court may grant the writ of its own motion at any time.32 Pending such a writ, the hearing of the cause is usually adjourned; but not if the application has been unreasonably delayed. The clerk may supply a deficiency in the record by subsequently sending up the omitted matter properly authenticated without any further order of the court; 35 and it has been held the court of first instance may direct omitted matter to be supplied, or amend the return, at least at the same term.38 But it seems

37

36

that leave to file the same must be obtained from the court of review.39 The clerk cannot in this manner correct an erroneous statement in the transcript.40 A certiorari for diminution of the record is not the proper remedy when the clerk has failed to properly authenticate the record." The record may be amended in the appellate court by consent; 42 and in a case where it was evident from an inspection of the transcript that it contained a clerical error, the Supreme Court permitted it to be corrected by amendment, on the production of the certificate of the clerk below as to the error, without a certiorari.“ Defects in a transcript cannot be supplied by reference to the record in another appeal."

In a proper case and under proper restrictions, pending an application for a rehearing below, the appellate court may re

30 S. C. Rule 14; C. C. A. Rule 18. 31 Bein v. Heath, 142 U. S. 704. 32 Morgan v. Curtenius, 19 How. 8; Sweeney v. Lomme, 22 Wall. 208.

33 Morgan v. Curtenius, 19 How. 8. But see Bein v. Heath, 142 U. S. 704. 34 Bein v. Heath, 142 U. S. 704. 35 Crandall v. Nevada, 6 Wall. 35. 36 Hobbs v. Nat. Bank of Commerce (C. C. A.), 93 Fed. R. 615; Lincoln Nat. Bank v. Perry (C. C. A.), 66 Fed. R. 887; Whiting v. Equitable L. A. Soc. (C. C. A.), 60 Fed. R. 197. But see Smith v. McIntyre, 84 Fed. R. 721.

37 Lincoln Nat. Bank v. Perry (C. C. A.), 66 Fed. R. 887; Rollins v. Board of Com'rs of Gunnison County (C. C. A.), 78 Fed. R. 741.

38 Whiting v. Eq. L. A. Soc. (C. C. A.), 60 Fed. R. 197; Rollins v. Board of Com'rs of Gunnison County (C. C. A.), 78 Fed. R. 741.

39 Tellunde Power Transp. Co. v. Rio Grande W. Ry. Co., 175 U. S. 639; Burnham v. N. Chicago St. Ry Co. (C. C. A.), 87 Fed. R. 168.

40 Hudgins v. Kemp, 18 How. 530. 41 Barings v. Dabney, 19 Wall. 1. 42 Fletcher v. Peck, 6 Cranch, 87. 43 Woodward v. Brown, 13 Pet. 1; Stitt v. Huidekopers, 17 Wall. 384. See Kennedy v. Bank of Georgia, 8 How. 586; Shaw v. Railroad Co., 101 U.S. 557.

44 South Carolina v. Wesley, 155 U.S. 542.

turn the record at the request of the court below, but not, it seems, at the request of the parties. The Supreme Court has allowed a transcript to be returned to the court below for correction, by the addition of the clerk's signature, after the time to take a new appeal had expired.46 The Supreme Court, after the dismissal of a writ of error on the motion of the plaintiff in error, refused to allow the transcript to be withdrawn.47

§ 512. Motions to dismiss appeals and writs of error.Motions to dismiss writs of error and appeals may be made upon the following grounds: For want of jurisdiction; abatement;1 for irregularities or informalities in the papers; for the failure of the plaintiff in error or appellant to perfect the appeal or proceedings in error; for the abandonment of the appeal or writ of error by the plaintiff in error or appellant; upon the consent of the parties; because the controversy has been settled pending the appeal or writ of error; and because the suit is fictitious and there is no real controversy between the parties. Cross-appeals may be dismissed upon the same grounds as original appeals.2

A writ of error or appeal may be dismissed for want of jurisdiction on the motion of the appellate court without the suggestion of either party. A writ of error or appeal will not be

45 Roemer v. Simon, 91 U. S. 149. 46 Idaho & Oregon L. Imp. Co. v. Bradbury, 132 U. S. 509.

47 Cheney v. Hughes, 138 U. S. 403. But see Porter v. Foley, 21 How. 393; Rice v. Minnesota & N. W. R. Co., 21 How. 82.

§ 512. An abatement may occur by the death of a sole party on either side where the plaintiff has failed below and the cause of action does not survive, Martin's Adm'r v. Balt. & O. R. Co., 151 U. S. 673, 703; by the failure of the plaintiff in error or appellant to revive the suit after due notice of the death of a party, S. C. Rule 9; C. C. A. Rule 19; supra, $ 373, 505; by the retirement from office of an officer sued solely in his official capacity, Lansing & Co. v. Hesing (C. C. A.), 81 Fed. R. 242; by the reversal of a judgment upon

which the decree below was founded, Chicago & V. R. Co. v. Fosdick, 106 U. S. 47, 84, 85; by the subsequent probate of a will when the appellant's claims are founded upon a supposed intestacy, Kimball v. Kimball, 174 U. S. 158; and by the repeal without a saving clause of the statute upon which the jurisdiction of the appellate court depends. Ex parte McCardle, 7 Wall. 506; Balt. & P. R. Co. v. Grant, 98 U. S. 398. Where the act which gave the jurisdiction to the court of first instance was repealed after a judgment for the plaintiff, the appeal was dismissed. U. S. v. McCrory (C. C. A.), 91 Fed. R. 295.

2 L. Bucki & Son L. Co. v. Atl. L. Co. (C. C. A.), 63 Fed. R. 765; Hilton v. Dickinson, 108 U. S. 165.

3 Hilton v. Dickinson, 108 U. S. 165; New Orleans Nat. Banking Ass'n v.

dismissed for want of jurisdiction of the court below. In such a case the court of review will take jurisdiction and reverse the judgment or decree. A writ of error to a State court will be dismissed unless it shows at least a color of ground for the averment of a Federal question. The Supreme Court cannot dismiss a cause on motion, because it was brought there for delay only, nor because the grounds of the appeal or writ of error are frivolous, unless a motion to affirm is coupled with the motion to dismiss. Two concurrent appeals from the same order or decree by the same party are not allowed, and on motion the court will determine which of the two should be dismissed. The allowance of an appeal which afterwards becomes of no avail, from failure to file the record and prosecute it, is no bar to a second appeal, within the time allowed by law.9 A writ of error or appeal may be dismissed where it appears upon the examination of affidavits and counter-affidavits filed in the appellate court, that the value of the property in dispute is less than the jurisdictional amount.10 Motions to dismiss writs of error and appeals for irregularities and informalities in the papers are of less importance now than formerly, on

New Orleans Mut. Ins. Ass'n, 102 U. S. 121. So of the objection that there is a defect of parties to the appeal or writ of error. Estis v. Trabue, 128 U. S. 225; Ayres v. Polsdorfer (C. C. A.), 105 Fed. R. 737; and cases cited supra, § 505. A writ of error by the receiver of a national bank will not be dismissed because the Comptroller in his direction to sue out the writ incorrectly named the defendant in error. Pacific Nat. Bank v. Mixter, 114 U. S. 463.

4 Harris v. Barber, 129 U. S. 366; Pike v. Gregory (C. C. A.), 94 Fed. R. 373; Nashua & L. R. Corp. v. Boston & L. R. Corp. (C. C. A.), 51 Fed. R. 929, 930; and cases cited infra, § 517. 5 Ibid.

8 Wheeler v. Harris, 13 Wall. 51. 9 Evans v. State Nat. Bank, 134 U. S. 330.

10 Wells v. Wilkins, 116 U. S. 393. See supra, § 504. Where an appeal has been allowed after a contest as to the value of the matter in dispute, it will not be dismissed because the court may be of the opinion that possibly the estimates acted upon below were too high, if there is no decided preponderance of evidence against jurisdiction. Gage v. Pumpelly, 108 U. S. 164. See also Zeigler v. Hopkins, 117 U. S. 683. Where the court below had failed to give due effect to a remittitur or release of part of the recovery, the Supreme Court modified the judgment so as

6 Hamblin v. Western Land Co., 147 to give due effect to the remittitur, U. S. 531.

7 Amory v. Amory, 91 U. S. 356; Bohanan v. Nebraska, 118 U. S. 231. Cf. Citizens' Bank v. Farwell (C. C. A.), 56 Fed. R. 539.

and affirmed the judgment as thus modified so as to be less than the jurisdictional amount without examining the other assignments of error. Simms v. Simms, 175 U. S. 162.