Erastus Cornelius Benedict.

The American admiralty, its jurisdiction and practice, with practical forms and directions online

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court has jurisdiction, it is manifest the writer appeal was taken for delay only,
or that the question on which the jurisdiction depends is so frivolous as not to
need further argument.



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398 APPENDIX.

6. The court will not hear argaments on Saturday (unless for special cause
it shall order to the contraiy), but will devote that day to the other business of
the court. The motion-day shall be Monclay of each week ; and motions not
required by the rules of the court to be put on the docket shall be entitled to
preference immediately after the reading of opinions, if such motions shall be
made before the court shall have entered upon the hearing of a case upon the
docket.



LAW LIBRARY.

1. During the session of the court, any gentleman of the bar having a case
on the docket, and wishing to use any book or books in the law library, shall
be at liberty, upon application to the clerk of the court, to receive an order to
take the same (not exceeding at any one time three) from the library, he being
thereby responsible for the due return of the same within a reasonable time, or
when required by the clerk. It shall be the duty of the clerk to keep, in a book
for that purpose, a record of all books so delivered, which are to be charged
against the party receiving the same. And in case the same shall not be so 1*6-
tuiDcd, the party receiving the same shall be responsible for and forfeit and pay
twice the value thereof, and also one dollar per day for each day's detention
beyond the limited time.

2. The clerk shall deposit in the law library, to be there carefully preserved,
one copy of the printed record in every case submitted to the court for its con-
sideration, and of all printed motions, briefs, or arguments filed therein.

3. The marshal shall take charge of the books of the court, together with such
of the duplicate law-books as Congress may direct to be transferred to the court,
and aiTange them in the conference-room, which he shall have fitted up in a
proper manner ; and he shall not permit such books to be taken therefrom by
uny one except the justices of the court.

8.

WRIT OF ERROR, RETURN AND RECORD.

1. The clerk of the court to which any writ of error may be directed shall
make return of the same, by tmnsmitting a true copy of the record, and of the
assignment of errors, and of all proceedings in the case, under his hand and the
seal of the court.

2. In all cases brought to this court, by writ of error or appeal, to review any
judgment or decree, the clerk of the court by which such judgment or decree
was rendered shall annex to and transmit with the recoi*d a copy of the opinion
or opinions filed in the case.

8. No case will be heard until a complete record, containing in itself, and not
by reference, all the papere, exhibits, depositions, and other proceedings which
are necessary to the hearing in this court, shall be filed.

4. Whenever it shall be necessary or proper, in the opinion of the presiding
judge in any Ciicuit Court, or District Court exercising Circuit-Court jurisdic-
tion, that original papers of any kind should be inspected in this court upon
writ of en*or or appeal, such presiding judge may make such rule or order for



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SUPREME COURT RULES, 399

the safe-keeping, transporting, and return of such original papers as to him
may seem proper, and this court will receive and consider such onginal papers
in connection with the transcript of the proceedings.

5. All appeals, writs of error, and citations must be made returnable not ex-
ceeding thirty days from the day of signing the citation, whether the return day
fall in yacation or in term time, and be served before the return day.

6. The recoi-d in cases of admimlty and maritime jurisdiction, when under
the requirements of law the facts have been found in the court below, and the
power of review is limited to the determination of questions of law arising on
the record, shall be confined to the pleatlings, the findings of fact, and conclu-
sions of law thereon, the bills of exceptions, the final judgment or decree, and
such interlocutory orders and decrees as may be necessary to a proper review of
the case.

9.

DOCKETING CASES.

1. It shall be the duty of the plaintiff in error or appellant to docket the case
and file the record thereof with the clerk of this court by or before the return
day, whether in vacation or in terra time. But, for good cause shown, the jus-
tice or judge who signed the citation, or any justice of this court, may enlarge
the time, by or before its expiration, the order of enlargement to be filed with
the clerk of this court. If the plaintiff in error or appellant shall fail to com-
ply with this rule, the defendant in error or appellee may have the cause docket-
ed and dismissed upon producing a certificate, whether in term time or vacation,
from the clerk of the court wherein the judgment or decree was rendered, stat-
ing the case and certifying that such writ of enx)r or appeal has been duly sued
out or allowed. And in no case shall the plaintiff in error or appellant be en-
titled to docket the case and file the record after the same shall have been dock-
eted and dismissed under this rule, unless by order of the court.

2. But the defendant in error or appellee may, at his option, docket the case
and file a copy of the record with the clerk of this court ; and, if the case is dock-
eted and a copy of the record filed with the clerk of this court by the plaintiff
in error or appellant within the period of time above limited and prescribed by
this rule, or by the defendant in error or appellee at any time thereafter, the
case shall stand for argument.

3. Upon the filing of the transcript of a record brought up by writ of error
or appeal, the appearance of the counsel for the party docketing the case shall
be entered.

4. In all cases where the^period of thirty, days is mentioned in Rule 8, it shall
be extended to sixty days in writs of error and appeals from California, Ore-
gon, Nevada, Washington, New Mexico, Utah, Arizona, Montana, Wyoming,
North Dakota, South Dakota, Alaska and Idaho.

10.

FRIUnNO BECORD3.

>

1. In all cases the plaintiff in error or appellant, on docketing a case and
filing the record, shall enter into an undertaking to the clerk, with surety to his
satisf action, for the payment of his fees, or otherwise satisfy him in that behalf.



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400 APPENDIX.

2. The clerk shall cause an estimate to be made of the cost of printinj!^ the
record, and of his fee for preparing it for the pnnter and supervising the pnnt-
ing, and shall notify to the party docketing the case the amount of the estimate.
If he shall not pay it within a reasonable time, the clerk shall notify the adverse
paity, and he may pay it. If neither party shall pay it, and for want of such pay-
ment the record shall not have been printed when a case is reached in the regu-
lar call of the docket, after March 1, 1884, the case shall be dismissed.

3. Upon payment by either party of the amount estimated by the clerk,
twenty-five copies of the record shall be printed, under his supervision, for the
use of the court and of counsel.

4. In cases of appellate jurisdiction the original transcript on file shall be
taken by the clerk to the printer. But the clerk shall cause copies to be made
for the printer of such original papers, sent up under Rule 8, section 4, as are
necessary to be printed ; and of the whole record in cases of original jurisdiction.

5. The clerk shall supervise the printing, and see that the printed copy is
properly indexed. He shall distribute the printed copies to the justices and the
reporter, from time to time, as required, and a copy to the counsel for the respec-
tive parties.

6. If the actual cost of printing the record, together with the fee of the clerk,
shall be less than the amount estimated and paid, the amount of the difference
shall be refunded by the clerk to the paity paying it. If the actual cost and
clerk^s fee shall exceed the estimate, the amount of the excess shall be paid to
the clerk before the delivery of a printed copy to either party or his counsel.

7. In case of revei*sal, affirmance, or dismissal, with costs, the amount of
the cost of printing the record and of the clcrk^s fee shall be taxed against the
party a^inst whom costs are given, and shall be inserted in the body of the
mandate or other proper process.

8. Upon tlie clerk's producing satisfactory evidence, by affidavit or the ac-
knowledgment of the parties or their sureties, of having served a copy of the
bill of fees due by them respectively, in this court, on such parties or their
sureties, an attachment shall issue against such parties or sureties, respectively,
to compel payment of said fees.

9. The plaintiff in error or appellant may, withiti ninety days after filing the
record in this court, file with the clerk a statement of the errors on which he
intends to rely, and of the parts of the record which he thinks necessary for the
consideration thereof, and forthwith serve on the adverse party a copy of such
statement. The adverse party, within ninety days thereafter, may designate in
writing, filed with tlie clerk, additional parts of the record which ho thinks ma-
terial ; and, if he shall not do so, he shall be held to have consented to a hear-
ing on the parts designated by the plaintiff in error or appellant. If parts of
the record shall be so designated by one or both of the parties, the clerk shall
pnnt those parts only ; and the court will consider nothing but those parts of
the record, and the eiTora so stated. If at the hearing it shall appear that any
material part of the record has not been printed, the writ of error or appeal
may be dismissed, or such other order made as the circumstances may appear
to the court to require. If the defendant in error or appellee shall have caused
unnecessary parts of the record to be printed, such order as to costs may be made
as the court shall think proper.



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SUPREME COURT RULES. 401

The fees of the clerk under Rule 24, section 7, shall be computed, as at pres-
ent, on the folios in the record as filed, and shall be in full for the performance
of his duties in the execution thereof.

11.

TRANSLATIONS.

Whenever any record transmitted to this court upon a writ of error or appeal
shall contain any document, paper, testimony, or other proceedings in a foreign
language, and the record does not also contain a translation of such document,
paper, testimony, or other proceeding, made under the authority of the inferior
court, or admitted to be correct, the record shall not be printed ; but the case
shall be reported to this court by the clerk, and the court will thereupon remand
it to the inferior court, in order that a translation may be there supplied and in-
serted in the record.

12.

FURTHER PROOF.

1. In all cases where further proof is ordered by the court, the depositions
which may be taken shall be by a commission, to be issued from this court, or
from any Circuit Court of the United States.

2. In all cases of admiralty and maritime jurisdiction, where new evidence
shall be admissible in this court, the evidence by testimony of witnesses shall
be taken imder a commission to be issued from this court, or from any Circuit
Court of the United States, under the direction of any judge thereof ; and no
such commission shall issue but upon interrogatories, to be filed by the party
applying for the commission, and notice to the opposite part}' or his agent or
attorney, accompanied with a copy of the interrogatories so filed, to tile cross-
interrogatories within twenty days from the sei*vice of such notice ; Provided,
however. That nothing in this rule shall prevent any party from giving oral tes-
timony in open court in cases where by law it is admissible.

13.

OBJECTIONS TO EVIDENCE IN THE RECORD.

In all cases of equity or admiralty jurisdiction, heard in this court, no objeo>-
tion shall hereafter be allowed to be taken to the admissibility of any deposition,,
deed, grant, or other exhibit found in the record as evidence, unless objection
was taken thereto in the court below and entered of record ; but the same shall
otherwise be deemed to have been admitted by consent.

14.

CERTIORARI.

No certiorari for diminution of the record will be hereafter awarded in any
case, unless a motion therefor shall be made in writing, and the facts on which
the same is founded shall, if not admitted by the other party, be verified by affi-
davit. And all motions for certiorari must be made at the first term of the entiy
26



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402 APPENDIX.

of the case ; othei'wise, the same will not be granted, unless upon special cause
shown to the court, accounting satisfactorily for the delay.

15.

DEATH OP A PARTY.

1. Whenever, pending a writ of error or appeal in this court, either party
shall die, the proper representatives in the personalty or realty of the deceased
party, according to the nature of the case, may voluntarily come in and be ad-
mitted parties to the suit, and thereupon the case shall be heard and dctei*mined
as in other cases ; and if such representatives shall not voluntarily become par-
ties, then the other party may suggest the death on the record, and thereupon,
on motion, obtain an order that unless such representatives shall become parties
within the fii*st ten days of the ensuing terra, the party moving for such order,
if defendant in eiTor, shall be entitled to have the writ of en*or or appeal dis-
missed ; and if the party so moving shall be plaintiff in error, he shall be entitled
to open the record, and on hearing have the judgment or decree reversed, if it
be erroneous : Provided, however. That a copy of every such order shall be
printed in some newspaper of genei'al ciixjulation within the state, territoiy,
or district from which the case is brought, fbr three successive weeks, at least
sixty days before the beginning of the term of the Supreme Court then next
ensuing.

2. When the death of a party is suggested, and the representatives of the
deceased do not appear by the tenth day of the second term next succeeding the
suggestion, and no measures are taken by the opposite party within that time
to compel their appearance, the case shall abate.

3. When either party to a suit in a Circuit Court of the United States shall
desire to prosecute a writ of eiTor or appeal to the Supreme Court of the United
States, from any final judgment or decree, rendered in the Circuit Court, and
at the time of suing out such writ of error or appeal the other party to the suit
shall be dead and have no proper representative within the jurisdiction of the
court which rendered such final judgment or decree, so that the suit can not be
revived in that court, but shall have a proper representative in some state or
teiTitory of the United States, the party desiring such writ of error or appeal
may procure the same, and may have proceedings on such judgment or decree
superseded or stayed in the same manner as is now allowed by law in other
cases, and shall thereupon proceed with such writ of eiTor or appeal as in other
cases. And within thirty days after the commencement of the term to which
such writ of error or appeal is returnable, the plaintiff in error or appellant shall
make a suggestion to the court, supported by affidavit, that the said party was
dead when the writ of error or appeal was taken or sued out, and had no proper
representative within the jurisdiction of the court which rendered said judgment
or decree, so that the suit couhi not be revived in that court, and that said party
had a proper representative in some state or territory of the United States,
and stating therein the name and character of such representative, and the
state or territory in which such representative resides ; and, upon such sug*
gestion, he may, on motion, obtain an order that, unless such representative
fihall make himself a party witliin the first ten days of the ensuing term of the



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SUPREME COURT RULES. 403

court, the plaintiff in error or appellant shall be entitled to open the record, and,
on hearing, have Uie judgment or decree reversed, if the same be erroneous :
Provided, however. That a proper citation reciting the substance of such order
shall be served upon such representative, either personally or by being left at
his residence, at least sixty days before the beginning of the term of the Su-
preme Court then next ensuing : And provided, also. That in every such case if
the representative of the deceased party does not appear by the tenth day of the
term next succeeding said suggestion, and the measures above provided to com-
))el the appearance of such representative have not been taken within the time as
above requii'ed. by the opposite party, the case shall abate : And provided, also,
That the said representative may at any time before or after said suggestion
come in and be made a party to the suit, and thereupon the case shall proceed,
and be heard and determined as in other cases.

16.

NO APPEARANCE OP PLAINTIFF.

Where no counsel appears and no brief has been filed for the plaintiff in en*or
or appellant, when the case is called for trial, the defendant may have the plain-
tiff called and the writ of error or appeal dismissed, or may open the record and
pray for an affirmance.

17.

NO APPEARANCE OF DEFENDANT.

Where the defendant fails to appear when the case is called for trial, the court
may proceed to hear an argument on the part of the plaintiff and to give judg-
ment according to the right of the case.

18.

NO APPEARANCE OF EFTHER PARTY.

When a case is reached in the regular call of the docket, and there is no ap-
pearance for either party, the case shall be dismissed at the cost of the plaintiff.

19.

NEITHER PARTY READY AT SECOND TERM.

When a case is called for argument at two successive terms, and upon the
call at the second term neither party is prepared to argue it, it shall be dismissed
at the cost of the plaintiff, unless sufficient cause is shown for further postpone-
ment.

20.

PRINTED ARGUMENTS.

1. In all cases brought here on writ of error, appeal, or otherwise, the court
will receive printed arguments without regard to the number of the case on the
docket, if the counsel on both sides shall choose to submit the same within the
first ninety days of the teim ; and, in addition, appeals from the Court of Claims



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404 APPENDIX.

may be sabmitted by both parties within thirty days after they are docketed, but
not after the first day of April ; but twenty-five copies of the arguments, signed
by attorneys or counsellors of this court, must be first filed.

2. When a case is reached in the regular call of the docket, and a printed ar-
gument shall be filed for one or both parties, the case shall stand on the same
footing as if there were an appearance by counsel.

3. When a ca«e is taken up for trial upon the regular call of the docket, and
argued orally in behalf of only one of the parties, no printed argument for the
opposite party will be received, unless it is filed before the oral argument begins,
and the court will proceed to consider and decide the case upon the ex parte ar-
gument.

4. No brief or argument will be received, either through the clerk or other-
wise, after a case has been argued or submitted, except upon leave granted in
open court after notice to opposing counsel.

21.

BRIEFS.

1. The counsel for plaintiff in error or appellant shall file with the clerk of
the court, at least six days before the case is called for argument, twenty-five
copies of a printed brief, one of which shall, on application, be furnished to each
of the counsel engaged upon the opposite side.

2. This brief shall contain, in the order here stated —

(1) A concise absti'act, or statement of the case, presenting succinctly the
questions involved and the manner in which they are raised.

(2) A specification of the eiTors relied upon, which, in cases brought up by
writ of error, shall set out separately and particularly each error asserted and
intended to be urged ; and in cases brought up by appeal the specification shall
state, as particulai*ly as may be, in what the decree is alleged to be erroneous.
When the error alleged is to the admission or to the rejection of evidence, the
specification shall quote the full substance of the evidence admitted or rejected.
When the error alleged is to the charge of the court, the specification sliall set
out the part referred to totidem verbis, whether it be instructions given or in-
structions refused. When the error alleged is to a ruling upon the report of a
master, the specification shall state the exception to the report and the action of
the court upon it.

(3) A brief of the argument, exhibiting a clear statement of the points of law
or fact to be discussed, with a reference to the pages of the record and the au-
thorities relied upon in support of each point. When a statute of a state is
cited, so much thereof as may be deemed necessary to the decision of the case
shall be printed at length.

3. The counsel for a defendant in error or an appellee shall file with the clerk
twenty-five printed copies of his argument, at least three days before the case
is called for hearing. His brief shall be of like character with that required of
the plaintiff in error or appellant, except that no specification of errors shall be
required, and no statement of the case, unless that presented by the plaintiff in
error or appellant is controverted.

4. When there is no assignment of errors, as required by section 997 of the



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SUPBEME COURT RULES. 406

Revised Statutes, counsel will not be heard, except at the request of the court ;
and errors not specified according to this rule will be disregarded ; but the court,
at its option, may notice a plain error not assigned or, specified.

5. When, according to this rule, a plaintiff in eiTor or an appellant is in de>
faulU the case may be dismissed on motion ; and when a d^endant in error or
an appellee is in default, he will not be heard, except on consent of his adver-
sary, and by request of the court. «

6. Where no oral argument is made for one of the parties, only one counsel
will be heard for the adverse party.

22.

ORAL ARGUMENTS.

1. The plaintiff or appellant in this court shall be entitled to open and con-
clude the argument of the case. But when there are cross-appeals they shall
be argued together as one case, and the plaintiff in the court below shall be en-
titled to open and conclude the argument.

2. Only two counsel will be heard for each party on the argument of a case.

3. Two hours on each side will be allowed for the argument, and no more,
without special leave of the court, granted before the argument begins. The
time thus allowed may be apportioned between the counsel on the same side,
at their discretion : Provided, always. That a fair opening of the case shall be
made by the party having the. opening and closing ^guments.



23.

INTEREST.

1. Jn cases where a writ of error is prosecuted to this court, and the judgment
of the inferior coui-t is afiirmed, the interest shall be calculated and levied, from
the date of the judgment below until the same is paid, at the same rate that
similar judgments bear interest in the courts of the state where such judgment
is rendered.

1. Li all cases where a writ of error shall delay the proceedings on the judg-
ment of the infeiior court, and shall appear to have been sued out merely for
delay, damages at a rate not exceeding 10 per cent, in addition to interest, shall
be awarded upon the amount of the judgment.

3. The same rule shall be applied to decrees for the payment of money in
cases in equity, unless otherwise ordered by this court.

4. In cases in admiralty, damages and interest may be allowed if specially
directed by the court.

24.

COSTS.

1. In all cases where any suit shall be dismissed in this court« except where
the dismissal shall be for want of jurisdiction, costs shall be allowed to the de-
fendant in eiTor or appellee, unless otherwise agreed by the parties.



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406 APPENDIX.

2. In all cases of affirmance of any judgment or decree in this court, costs shall
be allowed to the defendant in error or appellee, unless otherwise ordered by
the court.

3. In ca#s of reversal of any judgment or decree in this court, costs shall be



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 41 of 80)