Copyright
Walter Malins Rose.

A code of federal procedure. (Superseding Detsy's Federal procedure.) Embodying enactments of Congress, constitutional provisions, established principles, and court rules, in force December 1, 1906, and the Bankruptcy act of 1898, with amendments and orders, together with a online

. (page 93 of 114)
Online LibraryWalter Malins RoseA code of federal procedure. (Superseding Detsy's Federal procedure.) Embodying enactments of Congress, constitutional provisions, established principles, and court rules, in force December 1, 1906, and the Bankruptcy act of 1898, with amendments and orders, together with a → online text (page 93 of 114)
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trial, the loss of the said vessel was not caused by the wilful or gross
negligence and fraud of the assured.

5.

That the Court erred in holding that libelant was entitled to recover,
and in granting and entering its decree in her favor, and in not entering
a decree in favor of the respondent.

PAGE & EELLS,
Proctors for Respondent.



?966



CHAPTER 36.

WRITS OF ERROR, APPEAL BONDS AND CITATIONS.

F. 907. Writ of error.

F. 908. Writ of error to state court.

F. 909. Writ of error to district court of Alaska.

F. 910. Order fixing amount of bond on writ of error.

F. 911. Bond on writ of error.

F. 912. — another form.

F. 913. Bond on appeal horn interlocutory order.

F. 914. Bond on appeal.

F. 915. Bond on admiralty appeal.

F. 916. — another form.

F. 917. — another form.

F. 918. Stipulation fi.xing bond on appeal.

F. 919. Order of court fixing amount of bond on appeal.

F. 920. Citation and return.

F. 922. — another form.

F. 923. Citation on appeal in admiralty.

F. 924. — another form and return.

F. 925. Marshal's return to citation.

F. 907.
Writ of Error.
UNITED STATES OF AMERICA.— S3.
The President of the United States, to the Honorable, the .Judge of tlio
Circuit Court of the United States for the Northern District of Cali-
fornia, Greeting:
Because, in the record and proceedings, as also in the rendition of the
judgment of a plea which is in the said Circuit Court before you, or some
of you, between Herbert D. Gaskill and James I. Regan, plaintifTs in
error, and John F. Myers, defendant in error, a manifest error hath hap-
pened, to the great damage of the said Herbert D. (iaskili and James I.
Regan, plaintiffs in error, as by their complaint appears.

We, being willing that error, if any hath been, should be duly corrected,
and full and speedy justice done to the parties aforesaid in this behalf,
do command you, if judgment be therein given, that then under your
seal, distinctly and openly, you send the record and proceedings aforesaid,
with all things concerning the same, to the United States Circuit Court
of Appeals for the Ninth Circuit, together with this writ, so that you
have the same at the city of San Francisco, in the State of California,
on the twenty-ninth day of May next, in the said Circuit Court of Ap-

2907



F. 90S. FOKMS ON APPEAL. [Code Fed.

peals, to be then and there held, that the record and proceedings afore-
said being inspected, the said Circuit Court of Appeals may cause further
to be done therein to correct that error, what of right, and according to
the laws and customs of the United States, should be done.

Witness, the Honorable MELVILLE W. FULLER, Chief Justice of the
Supreme Court of the United States, the thirtieth day of April, in the year
of our Lord one thousand eight hundred and ninety-six.

[Seal] W. J. COSTIGAN,

Clerk of the United States Circuit Court for the Ninth Circuit, Northern
District of California.
Allowed by:

WM. W. MORROW,

District Judge.
Service of within writ of error and receipt of a copy thereof is hereby
admitted this first day of May, 1896.

JOHN L. BOONE,
Attorney for defendant in error.
Other forms of the writ are given in subsequent chapters dealing with
appeal from particular courts.

F. 908.

Writ of Error to State Court.

UNITED STATES OF AMERICA.— ss.

The President of the United States, to the Honorable, the Judges of the

Supreme Court of the State of Washington, Greeting:

Because, in the record and proceedings, as also in the rendition of the
judgment of a plea which is in the said Supreme Court of the State of

, before you, or some of you, being the highest Court of law

or equity of the said State in which a decision could be had in the said
suit, between the Standard Life & Accident Insurance Company, defend-
ant and plaintiff in error, and Eliza M. Eraser, plaintiff and defendant
in error, (1) wherein was drawn in question the validity of a treaty (or
statute) of (or an authority exercised under) the United States, and
the decision was against their validity, or (2) wherein was ilrawn in
question the validity of a statute of (or an authority exercised under) said
State, on the ground of their being repugnant to the constitution, treaties,
or laws of the L^nited States, and the decision was in favor of such their
validity; or (3) wherein was drawn in question the construction of a
clause of the constitution of (or of a treaty, or statute of, or commission
held under) the United States, and the decision was against the right,
title, privilege, or exemption specially set up or claimed under such cianse
of the said constitution (treaty, statute, or commission), a manifest error
hath happened, to the great damage of the said Standard Life & Accident
Insurance Company, plaintiff in error, as by its complaint appears.

We being willing that error, if any hath been, should be duly corrected,
and full and speedy justice done to the parties aforesaid in this behalf,
do command you, if judgment be therein given, that then under your seal.

2908



ITocedure] FORMS ON API'KAL. F. 909.

(distinctly and openly, you send the record and proceedings aforesaid,
with all things concerning the same, to the Sui)reme Court of the I'nitcu
Slates, together with this writ, so that you may have the same at Wash-
ington on the day of next, in the said Supreme Court,

that the record and proceedings aforesaid being inspected, the said Su-
preme Court may cause further to be done therein, to correct that error,
what of right and according to the laws and customs of the United
States should be done.

Witness, the Honorable :MELVILLE W. FULLER, Chief Justice of the

Supreme Court of the United States, the day of , 18 — .

[Seal] ' ,

Clerk of the Supreme Court of the United States.

Allowed by:



Justice.
The return day is thirty days in all cases except writ of error to cer-
tain western States, when it is sixty days. See ante, § — .

F. 909.

Writ of Error to District Court of Alaska.

UNITED STATES OF AMERICA.— ss.
The President of the United States of America to the Honorable Arthur
K. Delaney, Judge of the United States District Court for the District
of Alaska, Greeting:

Because in the record and proceedings, as also in the rendition of the
judgment of a plea which is in the said District Court, before you, be-
tween S. A. BonnifieUl and John G. Heid, plaintiffs, and Willis Thorp, de-
fendant, a manifest error has happened, to the great prejudice and damage
of the said defendant, Willis Thorp, as is said and appears by the petition
herein.

We. being willing that error, if any hath been, should be duly cor-
rected, and full and speedy justice done to the parties aforesaid in this
behalf, do command you, if judgment be therein given, that then under
your seal, distinctly and openly, you send the record and proceedings
aforesaid, with all things concerning the same, to the justices of the
United States Circuit Court of Appeals for the Ninth Circuit, in the city
of San Francisco, in the State of California, together with this writ, so
as to have the same at the said place in said circuit on the ninth day of
March, 1896, that the record and proceedings aforesaid being inspected,
the said Circuit Court of Appeals may cause further to be done therein
to correct those errors vphat of right, and according to the laws and cus-
toms of tho United States, should be done.

Witness, the Honorable MELVILLE W. FULLER, Chief Justice of the
Supreme Court of the United States, this tenth day of February, 189G.

Attest my hand and seal of the United States District Court for the

2969



p. 910 FORMS ON APPEAL. [Code Fed

District of Alaska, at the clerk's office at Sitka, Alaska, on the day and

year last above written.

* [L. S.] CHARLES D. ROGERS,

Clerk United States District Court, for the District of Alaska^
Allowed this tenth dav of February, 189G.

ARTHUR K. DELANEY.
Judge of the United States District Court, for the District of Alaska.

F. 910.
Order Fixing Amount of Bond on Writ of Error.

■[Title of Court and Cause.]

The defendant, , having this day filed its petition for a writ

of error from the decision and judgment thereon made and entered herein,

to the United States Circuit Court of Appeals in and for the

Judicial Circuit, together with an assignment of errors within due time,
and also praying that an order be made fixing the amount of security
which defendant should give and furnish upon said writ of error, and that
upon the giving of said security, all further proceedings of this Court be
suspended and stayed until the determination of said writ of error by

said United States Circuit Court of Appeals in and for the

Judicial Circuit, and said petition having this day been duly allowed:

Now, therefore, it is ordered, that upon the said defendant,



filing with the clerk of this court a good and sufficient bond in the sum of

dollars, to the effect, that if the said defendant, ,

and plaintiff in error shall prosecute the said writ of error to effect, and
answer all damages and costs if it fails to make its plea good, then the
said obligation to be void; else to remain in full force and virtue, the said
bond to be approved by the Court that all further proceedings in this
court be, and they are hereby suspended and stayed until the determina-
tion of said writ of error by the said United States Circuit Court of
Appeals.

Dated , 18—.



Judge.
F. 911.
Bond on Writ of error.
[Title of Court and Cause]

Know all men by these presents, that we, -, as principal, and

, as surety, are held and firmly bound unto , plaintiff

above-named, in the sum of dollars, to be paid to the said ,

his executors or administrators, to which payment well and truly to be
made, we bind ourselves and each of us, jointly and severally, and our
and each of our successors, representatives, and assigns, firmly by these
presents.

Sealed with our seals and dated the day of , 18 — .

Whereas, the above-named defendant, , has sued out a writ

of error to the United States Circuit Court of Appeals, for the ' ■

2970



Procedure] FOIIMS ON Al'l'KAI.. F. 913.

Circuit, to reverse the judgment in the above-entitled cause by the Cir-
cuit Court of the United States for the District of .

Now, therefore, the condition of this obligation is such that if the

above-named shall prosecute? said writ to olVect and answer

all costs and damages, if he shall fail to make good his plea, then this
obligation shall be void; otherwise to remain in full force and virtue.

F. 912.
— Another Form.

Know all men by these presents, that we, , as principal and

— — and , as sureties, are held and firmly bound unto

in the full and just sum of tive hundred dollars, to be paid to

the said , his certain attorneys, executors, administrators, or

assigns to which payment, well and truly to be made, we bind ourselves,
our heirs, executors and administrators, jointly and severally, firmly by
these presents.

Sealed with our seals and dated this — day of , in the

year of our Lord one thousand eight hundred and .

Whereas, lately at a session of the Circuit Court of the United States

for the District of , in a suit pending in said court

betweeen , plaintiff, and . defendant, a final judgment

was rendered against the said defendant, and the said , de-
fendant, having obtained from said Court a writ of error to reverse the

judgment in the aforesaid suit, and a citation directed to said

is about to be issued, citing and admonishing him to be and appear at a

United States Circuit Court of Appeals for the — ^ Circuit, to be

holden at -.

Now, the condition of the above obligation is such, that if the said
shall prosecute his writ of error to effect and shall answer all



damages and costs that may be awarded against him, if he fails to make
his plea good, then the above obligation to be void; otherwise to remain
in full force and virtue.

(a) Desty's Fed. Proc. sec. 0:13; Sup. Ct. R. 2!); C. C. App. R. 13.

F. 013.
Bond on Appeal from Interlocutory Order.
[Title of Court and Cause.]

Know all men by these pre.sents, that we, the Southern Pacific Com-
pany, a corporation, and Robert (Graham, as principals, and Winfield S.
Davis and Fred J. Koster, as sureties, are jointly and severally held and
firmly bound unto the above named Edwin T. Earl, in the sum of five
hundred dollars ($.500), lawful money of the United States of America, to
be paid to the said Edwin T. Earl, his executors or administrators, for
which payment well and truly to be made we bind ourselves, our and
each of our heirs, executors, administrators and assigns, jointly and several-
ly, firmly by these presents.

Sealed with our seals and dated the day of , in the

year of our Lord one thousand eight hundred and .

The condition of the above obligation is such, that, whereas said South-

2971



1?, 914. FORMS ON Al'l'EAL. [Code Ked..

crn Pacific Company and Robert Graliam have taken an appeal to the Cir-
cuit Court of Appeals for the — '- Circuit, to reverse an interlocutory

order rendered and entered by the Circuit Court of the United States,

Judicial Circuit, in and for the District of ,

which order was made and entered in the above-entitled suit on the ■

day of , 18 — .

Now, therefore, the condition of the above obligation is such, that if
the above-named Southern Pacific Company and Robert Graham, respond-
ents herein, shall prosecute said appeal to effect, and answer all damages,
and costs, if they shall fail to make good their plea, then this obligation
shall be void, otherwise to remain in full force and effect.

[Endorsed] : The within bond is hereby approved this day of

, 18-.



Jxidge.



F. 914.
Bond on Appeal.



[Title of Court and Cause.]

Know all men by these presents, that we, Zan Brothers and Company
(a firm composed of F. Zan, M. Zan, and M. Planich, doing business in the
city and county of San Francisco, State of California, John W. Brad-
shaw and the Chicago Ferrule Company (a corporation), as principals,
and Paul Keyser and Louis Feldman, Jr., as sureties, are held and firmly
bound unto George F. Mackenzie in the full and just sum of five hun-
dred dollars, to be paid to said George F. Mackenzie, his attorneys,
executors, administrators or assigns, to which payment, well and truly
to be made, we bind ourselves, our heirs, executors and administrators,
jointly and severally, firmly by these presents.

Sealed with our seals and dated this sixteenth day of March, in the
year of our Lord one thousand eight hundred and ninety-six.

Whereas, lately at a session of the Circuit Court of the United States,
for the Northern District of California, in a suit pending in said Court be-
tween the said Zan Brothers & Company. J. W. Bradshaw, and Chicago
Ferrule Co., complainants, and George F. Mackenzie, ref,pondent, a decree
was rendered against the said Zan Brothers & Company, J. W. Bradshaw,.
and Chicago Ferrule Company, and the said Zan Brothers & Company, J.
W. Bradshaw, and Chicago Ferrule Company, having obtained from said
Court an order allowing an appeal to the United States Circuit Court of
Appeals to reverse the decree of the aforesaid suit, and a citation directed
to the said George F. Mackenzie is about to be issued citing and admon-
ishing him to be and appear at the United States Circuit Court of Ap-
peals, for the Ninth Circuit, to be holden at San Francisco, California.

Now, the condition of the above obligation is such that if the said Zan
Brothers & Company, J. W. Bradshaw and Chicago Ferrule Co. shall
prosecute their said appeal to effect, and shall answer all damages and
costs that may be awarded against them, if they fail to make their plea.

2972



Procedure] FORMS ON APPEAL. F. 016.

good, then the above obligation is to be void; otherwise to remain in
full force and virtue.

ZAN BROS. & CO., by F. ZAN. [Seal]
PAUL KEYSER. [Seal]

LOUIS FELDMANN, Jr. [Seal]

Sufficiency of sureties on the foregoing bond approved this seventeenth
-day of March, 1896.

JOSEPH McKEXXA,
Judge.
F. !}15.
Bond on Admiralty Appeal.
{Title of Court and Cause.]

Know all men by these presents, that we, the New Zealand Insurance
Company, and the American Surety Company of New York, are held and
firmly bound unto the Earnmoor Steamship Company, Limited, in the
sum of fifteen hundred and fourteen dollars, to be paid to the aforesaid
Earnmoor Steamship Company, Limited, its successors or assigns; to
which payment, well and truly to be rcade, we bind ourselves and each
of us, our and each of our successors and assigns, jointly and severally,
firmly by these presents.

Sealed with our seals and dated this seventh day of August, 1806.
Whereas, the above-named Xew Zealand Insurance Company has ap-
pealed to the United States Circuit Court of x'^ppeals, for the Ninth Cir-
cuit, from a decree in favor of the above-named libelant, made and en-
tered on the twenty-sixth day of June, 1806, in the above-entitled action,
by the District Court of the United States for the Northern District of
•California, praying that said decree may be reversed.

Now, therefore, the condition of this obligation is such that if the above-
named appellant shall prosecute its appeal to effect, and shall answer all
damages and costs if it fails to make its appeal good, then this obligation
shall be void, otherwise the same shall remain in full force and effect.
In witness whereof, etc.

The foregoing bond may be approved as to form, amount, and suffi-
ciency of sureties.

PAGE & EELLS.
Proctors for libelant and appellee.
This bond approved as to form, amount, and sufficiency of sureties.

WAI. W. MORROW,
Judge of the United States District Court, Northern District of California.

F. 916.
— Another Form.
Know all men by -these presents, that we, Thames & Mersey Marine
Insurance Company, Limited, as principal, and John Rosenfeld and Jacob
Eppinger, as sureties, are held and firmly bound unto Mary O'Connell,
administratri.x of the estate of Thomas O'Farrell, deceased, in the full and
just sum of twenty-five hundred dollars, to be paid to the said Mary
■O'Connell. administratrix, her certain attorney, e.\ecutors, administrators,

2973



F. 917 FORMS ON AI'l'EAL. [Code Fed.

or assigns; to which payment well and truly to be made, we bind our-
selves, our heirs, executors, and administrators jointly and severally, by
these presents. Sealed with our seals and dated this seventh day of June,
in the year of our Lord one thousand eight hundred and ninety-seven.

VA^hereas, lately at a District Court of the United States, for the North-
ern District of California, in a suit depending in said Court, between Mary
O'Connell, administratrix of the estate of Thomas O'Farrell, deceased,
libelant, and the Thames & Mersey Marine Insurance Company, Limited,
respondent, a decree was rendered against the said respondent, and the
said respondent having obtained from said Court an order allowing an
appeal to reverse the decree in the aforesaid suit, and a citation directed
to the said Mary O'Connell, administratrix, ^tc, libelant, citing and ad-
monishing her to be and appear at a United States Circuit Court of Ap-
peals for the Ninth Circuit, to be holden at San Francisco, in the State of
California, on the next.

Now, the condition of the above obligation is such that if said Thames
& Mersey Marine Insurance Company, Limited, shall prosecute its ap-
peal to effect, and answer all damages and costs, if it fails to make its
plea good, then the above obligation to be void; else to remain in full
force and virtue.

F. 917.
— Another Form.
[Title of Court and Cause.]

Know all men by these presents, that Pacific Coast Steamship Com-
pany, a corporation, as principal, and Edwin Coodall and C. M. Goodall,.
as sureties, are hereby held and firmly bound to the aforesaid respond-
ents, their administrators executors, and assigns in the sum of three
hundred ($300) dollars. United States gold coin, to be paid to the afore-
said I'espondents, their administrators, executors, or assigns, to which
payment, well and truly to be made, we bind ourselves, our heirs, executors,
administrators, and assigns, jointly and severally, firmly by these presents.

Dated this twenty-fourth day of January, 1896.

Whereas, the above-named libelant has appealed to the Circuit Court of
Appeals of the United States, Ninth Circuit, to reverse the decree in the
above suit by the District Court of the United States for the Northern
District of California.

Now, therefore, the conditions of this obligation are such that if the
above-named appellant shall prosecute his appeal to efi'ect, and answer
all damages and costs, if he fails to make his appeal good, then thia
obligation shall be void; otherwise, the same shall be and remain in full
lorce and effect.

Subscribed and sworn to, etc.

[Seal] JAMES L. KING.

We are satisfied with the within bord and the sureties thereon.

MASTICK, BELCHER & MASTICK,
Proctors for respondents.

Approved :

WM. W. MORROW, Judge.

2974



Procedure] FOIJMS t)\ AI'I'KAL. F. 920.

F. ni8.

Stipulation Fixing Bond on Appeal.
Stipulated and consented that the bond of libelant on appeal to the
United States Circuit Court of Appeals in the above-entitled cause may
be fixed at the sum of three hundred dollars, and that tlx; same when
filed shall be effective as a bond for costs on such appeal, and as a super-
sedeas bond as well.

MASTICK, BELCHER & MASTICK,

Proctors for respondents.
F. OH).
Order of Court Fixing Amount of Bond on Appeal.
In this cause, on motion of proctor tor libelant, and pursuant to stipu-
lation of proctors for respondents, on file here, it is ordered that the bond'
of libelant, on appeal, herein be, and the same hereby is. fixed at the sum
of three hundred dollars.

WM. W. MORROW,
Judge.
F. 920.
Citation and Return.
UNITED STATES OF AMERICA.— ss.
Tlie President of the United States, to the City of Spokane, Washington,
and W. H. Plummer, its Attorney, Creeting:
You are hereby cited and admonislied to be and appear at the (b)
United States Circuit Court of A})peals for the Ninth Circuit, to be held at
the city of San Francisco, in the State of California, within thirty days
from the date of this writ, pursuant to an appeal (or writ of error) filed
in the clerk's office of the Circuit Court of the United States for the
District of Washington, Western Division, wherein 0. N. Denny, receiver
of the Portland Savings Bank, is plaintiff, and you are defendant in error,
to show cause, if any there be, why the judgment in the said appeal (or
writ of error) mentioned should not be corrected, and speedy justice should
not be done to the parties in that belialf.

Witness, the Honorable MELVILLE W. FULLER, Chief .Tustice of
of the Supreme Court of the United States of America, this twelfth day
of May, A. D. 1890, and of the independence of the United States the
one hundred and twentieth.

C. H. HANFORD,
United States District Judge, presiding in the Circuit Court.
Attest :

A. REEVES AYRES,
Clerk.
United States of America.

ss.
District of Washington.

I hereby certify that I served the within citation on II. N. Belt, mayor
of the city of Spokane, Washington, on the thirteenth day of May, 1800, at
the city and county of Spokane, in the District of Washington, by then and

2975



F. ^-2. FORMS ON APPEAL. [Code Fed.

there delivering to the said H. N. Belt, mayor, personally, a true copy
of the within citation.

And I further certify that I served the within citation on the within-
named W. H. Plummer, attorney for defendant, on the fourteenth day of
May, 189G, at the city and county of Spokane, in the District of Wash-
ington, by then and there delivering to said W. H. Plummer, personally,
a true copy of the within citation.

Dated at Spokane, in the District of Washington, this fourteenth day
of May, 189G.

JAMES C. DRAKE.

U. S. Marshal.
By Sam Vinson,
Deputy.
F. 922.
— Another Form.
UNITED STATES OF AMERICA.— S3.
The President of the United States to XY, Greeting:

You are hereby cited and admonished to be and appear at a United

States Circuit Court of Appeals for the Circuit, to be holden at

the city of — , in the State of , on the day of

next, pursuant to an order allowing an appeal entered in the clerk's

office of the Circuit Court of the United States, for the District

of , in that certain action, numbered , in which AB and

CD are complainants and appellants, and you are respondent and appellee,
to show cause, if any there be, why the decree rendered against the said



Online LibraryWalter Malins RoseA code of federal procedure. (Superseding Detsy's Federal procedure.) Embodying enactments of Congress, constitutional provisions, established principles, and court rules, in force December 1, 1906, and the Bankruptcy act of 1898, with amendments and orders, together with a → online text (page 93 of 114)