Erastus Cornelius Benedict.

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

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Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 43 of 80)
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416 APPENDIX.

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
oourt, 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 back to the inferior court, in order that a translation may be there supplied
and inserted in the record.

16.

I>OCKETING CASES.

1. It shall be the duty of the plaintiff in enx>r 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 term time. But for good cause shown the justice
or judge who signed the citation, or any judge 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 comply
with this rule, the defendant in error or appellee may have the cause docketed
and dismissed upon producing a ceitificate, 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 error or appeal has been duly sued
out or allowed. And in no case shall the plainliff in error or appellant be enti-
tled to docket the case and file the record after the same shall have been dock-
eted and dismissed under this rule, unless by oi*der 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
docketed and a copy of the record filed with the clerk of this court by the plain-
tiff 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 at the term.

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.

17.

DOCKET.

The clerk shall enter upon a docket all cases brought to and pending in the
court in their proper chronological order, and such docket shall be called at
every term, or adjourned term ; and if a case is called for hearing at two terms
successively, and upon the call at the second term neither party is prepared to
argue it, it will be dismissed at the cost of the plaintiff in error or appellant,
unless sufficient cause is shown for further postponement.

18.

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



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RULES OP THE U. S. CIRCUIT €OUET OF APPEALS. 417

affidavit. And all motions for such certiorari must be made at the first term of
the entry of the case ; otherwise, the same will not bo granted, unless upon
special cause shown to the court, accounting satisfactorily for the delay.

19.

DEATH OK A PARTY.

1. Whenever, pending a writ of error or appeal in this court, either party shall
die, the proper representatives in the personal t}' or realty of the deceased party,
according to the nature of the case, may voluntai'ily come in and be admitted par-
ties to the suit, and thereupon the case shall be heard and determined as in other
cases; and if such representatives shall not voluntarily become parties, then the
other party may suggest the death oi^the record, and thereupon, on motion, ob-
tain an order that unless such representatives shall become parties within sixty
<lays, the party moving for such order, if defendant in eiTor, shall be entitled to
have the writ of error or appeal dismissed, 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 erix)neous : Provided however. That a
copy of every such order shall be personally served on said representatives at
letist thirty days before the expiration of such sixty days.

2. When the death of a party is suggested, and the representatives of the de-
ceased do not appear within ten days after the expiration o^ such sixty days, and
no measures are taken by the opposite party within that time to compel their
appeamnce, the case shall abate.

3. When either party to a suit in a Ciixjuit or District Court of the United States
shall desire to prosecute a writ of error or appeal to this court, from any final
judgment or decree, rendered in the Circuit or District 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 ren-
dered such final judgment or decree, so that the suit cannot be revived in that
court, but shall have a proper representative in some state or territory of the
United States, or in the District of Columbia, the paity desiring such M'rit of
error or appeal may pi'ocure the same, and may have pi*oceedings on such judg-
ment 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 filing of the record in this
court the plaintiff in error or appellant shall make a suggestion to the court, sup-
ported by affidavit, that the said party was dead when the writ of error or appeal
was taken or sued out, and had no pi-oper representative within the jurisdiction
of the court which rendered such judgment or decree, so that the suit could not
be revived in that court, and that said party had a proper representative in some
state or territory of the United States, or in the District of Columbia^ and stat-
ing therein the name and chai*acter of such representative, and the state or ter-
ritoiy or district in which such representative resides; and upon such suggestion,
he may on motion obtain an order that, unless such representative shall make
himself a party within ninety days, the plaintiff in eiTor or appellant shall be
entitled to open the record, and, on hearing, have the judgment or decree re-
versed if the same be erroneous : Provided, however. That a proper citation re-

27



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418 APPENDIX.

citing the substance of such order shall be served upon such representattve*
either personally or by being left at his residence, at least thirty days before
the expiration of such ninety days : Provided, also. That in every such case, if
the representative o| the deceased party does not appear within ten days after
the expiration of such ninety days, and the measures above provided to compel
the appearance of such representative have not been taken within the time as
above required, by the opposite paity , 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.

20.

DISMISSING GASES.

Whenever the plaintiff and defendant in a writ of error pending in this court,
or the appellant and appellee in an appeal, shall by their attorneys of record,
sign and file with the clerk an agreement in winting dii*ecting the case to be dis-
missed, and specifying the terms on which it is to be dismissed, as to costs, and
shall pay to the clerk any fees that may be due to him, it shall be the duty of
the clerk to enter the case dismissed, and to give to either party requesting it a
copy of the agi'eement filed ; but no mandate or other process shall issue witli-
out an order of the c^urt.

21.

MOTIONS.

1. All motions to the court shall be reduced to writing, and shall contain a
brief statement of the facts and objects of the motion.

2. One hour on each side shall be allowed to the argument of a motion, and
no more, without special leave of the court, granted before the argument
begins.

3. No motion to dismiss, except on special assignment by the court, shall be
heard, unless previous notice has been given to the adverse party, or the coun-
sel or attorney of such party.

22.

PARTIES NOT READY.

1. Where no couumI appears, and no brief has been filed for the plaintiff in
error or appellant, when the case is called for trial, the defendant may have
the plaintiff called and the writ of error or appeal dismissed.

2. 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
judgment according to the right of the case.

8. When a case is reached in the regular call of the docket, and there is no
appearance for either pai-ty, the case shall be dismissed at the cost of the
plaintiff.



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BULBS OF THE V. p. CIRCCTIT COURT OF APPEALS. 419

23.

PRINTmO RECORDS.

•• On the filing of the transcript in every case, the clerk shall forthwith cause
fifteen copies of the same to be printed, and shall furnish three copies thereof to
each party, at least thirty days before the argument, and shall file nine copies
thereof in his ofiice. The parties may stipulate in writing that parts only of the
record shall bo printed, and the case may be heard on the parts so printed ; but
the court .may direct the printing of other parts of the record. The clerk shall be
entitled to demand of the appellant, or plaintiff in error, the cost of printing the
record, before ordering the same to be done. If the record shall not have been
printed when the case is reached for argument, for failure of a party to advance
the costs of printing, the case may be dismissed. In case of revei*sal, afiinn-
ance, or dismissal, with costs, the amount paid for printing the record shall be
taxed against the party against whom costs are given."

24.

BRIEFS.

** 1. The counsel for the plaintiff in en-or, or appellant, shall file with the
clerk of this court, at least twenty days before the case is called for argument,
ten 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 oixler here stated —

(1.) A concise abstract, or statement of the case, presenting succinctly* the
questions involved, in the manner in which they are raised.

(2.) A specification of the eiToi*s 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 particularly as may be, in what the decree is alleged to be erroneous.
When the eiTor 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 shall set
out the part referred to totidem verbis, whether it be in instructions given or in
instructions refused. When the en*or 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
authorities 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.

8. The counsel for a defendant in error or an appellee shall file with the clerk,
at least ten days before the case is called for hearing, ten copies of his printed
brief, one of which shall, on application, be furnished to each of the counsel
on the opposite side. His brief shall be of a like character with that required
of the plaintiff in error or appellant, except that no specification of errors shall be



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420 APPENDIX. .

required, and no statement of the ease, 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
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 eiTor not assigned or specified.

5. When, according to this rule, a plaintiff in error or an appellant is in de-
fault, the case mny be dismissed on motion, and when a defendant 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. When no counsel appears for one of the parties, and no printed brief or
argument is filed, only one counsel will be heard for the adverse party ; but if
a printed brief or argument is filed, the adverae party will be entitled to be
heard by two counsel.

25.

ORAL ARGUMENTS.

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

2. Only two counsel will be heaixl 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
tlieir discretion ; provided, always, that a fair opening of the case shall be made
by the party having the opening and closing arguments.

26.

FORM OF PRINTED RECORDS, ARGUMENTS, ANd' BRIEFS.

All records, arguments, and briefs printed for the use of the court must be
in such form and size that they can be conveniently bound together, so as to
make an ordinary octavo volume.

27.

COPIES OF RECORDS AND BRIEFS.

The clerk shall carefully preserve in his office one copy of the printed record
in every case submitted to the court for its consideration, and of all printed mo-
tions, briefs and arguments filed therein.

28.

OPINIONS OF THE COURT.

1. All opinions delivered by the court shall, immediately upon the delivery
thei-eof, be handed to the clerk to be recorded.

2. The original opinions of the court shall be filed with the clerk of this court
for preservation.



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RULES OP THE TJ. S. CIRCUIT COURT OF APPEALS. 421

3. Opinions printed under the supervision of the judge delivering the sanoe
need not be copied by the clerk into a book of records ; but at the end of each
term the clerk shall cause such printed opinions to be bound in a substantial
manner into one or more volumes, and when so bound they shall be deemed to
have been recorded within the meaning of this rule.

29.

REHEARING.

A petition for rehearing after judgment can be presented only at the tenn at
which judgment is entered, unless by special leave granted during the term ; and
must be printed and briefly and distinctly state its grounds, and be suppoited
by certificate of counsel ; and will not be granted, or permitted to be argued,
unless a judge who concurred in the judgment desires it, and a majority of the
court so determines.

30.

INTEREST.

1. In cases where a writ of error is prosecuted in this court, and the judgment
of the inferior court is affirmed, the interest shall be calculated and levied, from
the date of the judgment below until the same is paid, at the same rate that simi-
lar judgments bear interest in the courts of the state or territory where such
judgment was rendered.

2. In all cases where a writ of error shall delay the proceedings on the judg-
ment of the inferior court, and shall appear to have been sued out merely for
delay, damages at a rate not exceeding ten 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 of equity, unless otherwise ordered by this coyrt.

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

31.

COSTS.

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

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

3. In cases of reversal of any judgment or decree in this court costs shall be
allowed to the plaintiff in error or appellant, unless otherwise ordered by the
court. The cost of the transcript of the record from the court below shall be
taxable in that court as costs in the case.

4. Neither of the foregoing sections shall apply to cases where the United
States are a party ; but in such cases no costs shall be allowed in this court for
or against the United States.



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422 APPENDIX.

5. When costs are allowed in this court, it shall be the daty of the clerk to
insert the amonnt thereof in the body of the mandate, or other proper process,
sent to the court below, and annex to the same the bill of items taxed in detail.

6. In all cases certified to the Supreme Court or removed thereto by certiorari
or othei^wise, the fees of the clerk of this court shall be paid before a transcript
of the record shall be transmitted to the Supreme Court.

32.

MAin>ATB.

In all cases finally determined in this coui't, a mandate or other proper process
in the nature of a procedendo, shall be issued, on the order of this court, to the
court below, for the purpose of informing such court of the proceedings in this
court, so that further proceedings may be had in such court as to law and justice
may appertain.

33.

CUSTODY OP PRISONERS ON HABEAS CORPUS.

1. Pending an appeal from the final decision of any court or judge declining
to grant the writ of habects corpus, the custody of the prisoner shall not be dis-
turbed.

2. Pending an appeal from the final decision of any court or judge discharg-
ing the writ after it has been issued, the prisoner shall be remanded to the cus-
tody from which he was taken by the writ, or shall, for good cause shown, be
detained in custody of the court or judge, or be enlarged upon recognizance, as
hereinafter provided.

3. Pending an appeal from the final decision of any court or judge discharg-
ing the prisoner, he shall be enlarged upon recognizance, with surety, for ap-
pearance to answer the judgment of the appellate court, except where, for
special reasons, sureties ought not to be required.

34.

MODELS, DIAGRAMS, AND EXHIBITS OF MATERIAL.

1. Models, diagrams, and exhibits of material forming part of the evidence
taken in the court below, in any case pending in this court, on writ of error or
appeal, shall be placed in the custody of the marshal of this court at least ten
days before the case is heard or submitted.

2. All models, diagrams, and exhibits of material placed in the custody of the
marshal for the inspection of the court on the hearing of a case, must be taken
away by the parties within one month after the case is decided. When this is
not done, it shall be the duty of the marshal to notify the counsel in the case, by
mail or otherwise, of the requirements of this rule ; and, if articles are not re-
moved within a reasonable time after the notice is given, he shall desti-oy them,
or make such other disposition of them as to him may seem best.



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RULES IN ADMIRALTY.



UNITED STATES CIRCUIT COURT OF APPEALS,

FOR THE SECOND CIRCUIT.

Adapted July 1, 1802. Amended October 6, 1892.



APPEALS AND NEW PLEADINGS.

An appeal to the Circuit Court of Appeals shall be taken by filing in the office
of the clerk of the District Court, and serving on the proctor of the adverse
party a notice signed by the appellant or his proctor that the paity appeals to
the Circuit Court of Appeals from the decree complained of.

The appeal shall be heard on the pleadings and evidence in the District Couit,
unless the Appellate Court, on motion, otherwise order.

2.

NOTICE AND 6OND.

Sec. 1. When a notice of appeal is served, the appellant shall file in the
clerk *s office of the District Court a bond for costs of the appeal, with sufficient
surety, in the sum of $250, conditioned that the appellant shall prosecute his ap-
peal to effect and pay the costs, if the appeal is not sustained. Such security
shall be given within ten days after filing the notice, or the appeal shall be
deemed abandoned, and the decree of the court below enforced, unless other-
wise ordered by a judge of this court.

Sec. 2. And if the appellant desires to stay the execution of the decree of the
court below, the bond which he shall give shall be a bond with sufficient
surety in such further sum as ihe judge of the District Couit or a judge of this
court shall order, conditioned that he will abide by and perform whatever de-
cree may be rendered by this court in the cause, or on the mandate of this court
by the court below.

Sec. 3. The appellant shall, on filing either of such bonds, give notice of
such filing, and of the names and residence of the sureties, and if the appellee,
within two days, excepts to the sureties, they shall justify, on notice,within two
days after such exception.



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424 APPENDIX.

3.

' REVIEW IN PAKT ONLY.

The appellant may also, at his option, state in his notice of appeal that he de-
sires only to review one or more questions involved in the cause, which ques-
tions must be clearly and succinctly stated ; and he shall be concluded in this
behalf by such notice, and the review upon such an appeal shall be limited to
such question or questions.

4.

APOSTLES ON APPEAL TO CONTAIN.

Sec. 1. The apostles, on an appeal to this com*t, shall, in cases where a gen-
eral notice of appeal is served, consist of the following:

(1). A captioil exhibiting the proper style of the court and the title of the
cause, and a statement showing the time of the commencement of the suit ; the
names of the parties, setting forth the original parties and those who have be-
come parties before the appeal, if any change has taken place; the several
dates when the respective pleadings were filed ; whether or not the defendant
was arrested, or bail taken, or property attached, or arrested, and if so, an ac-
count of the proceedings thereunder ; the time when tlie trial was had, and the
name of the judge hearing the same ; whether or not any question was referred
to a commissioner, or commissioners, and if so, the result of the proceedings
and report thereon ; the date of the entry of the interlocutory and final decrees ;
and the date when the notice of appeal was filed.

(2). All the pleadings, with the exhibits annexed thereto.

(3). All the testimony and other proofs adduced in the cause.

(4). The interlocutory decree and any order of the court which appellant may
desire to have reviewed on the appeal.

(6). Any report of a commissioner or commissioners to which exception may
have been taken, with the order or orders of the court respecting the same, and
the exceptions to the report, and so much of the testimony taken in the pro-
ceeding as may be necessai-y to a review of the exceptions.

(6). All opinions of the court, whether upon interlocutory questions or finally
deciding the cause.

(7) . The final decree, and the notice of appeal ; and

(8). The assignments of error.

Sec. 2. All other papers shall be omitted unless otherwise ordered by the
judge who heard the cause.

Sec. 3. Where the appellant shall appeal specially and seek only to review
one or more questions involved in the cause, the apostles may, by stipulation
between the proctors for the respective parties, contain only such papers and
proceedings and evidence as are necessary to review the questions raised by the
appeal.

6.

CERTIFYING RECORDS.

The appellants shall, within thirty days after giving notice of appeal, procure
to be filed in this court the apostles certified by the clerk of the District Court,



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ADMIRALTY RULES OP TJ. S. CIRCUIT COURT OP APPEALS. 425



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 43 of 80)