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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 clocketed and dismissed, upon producing a certificate, whether in termtime or vacation, 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 has been duly sued out or allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the case and file the record after the same shall have been docketed and dismissed under this rule, unless by order of this 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 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 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.
4. 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 satisfaction for the payment of his fees, or otherwise satisfy him in that behalf.
[As originally adopted. See page xxx.] See additional rule 35, page lxxxiv.
[As originally adopted. See page xxx.]
[As originally adopted. See page xxxi.]
[As originally adopted. See page xxxii.]
[As originally adopted. See page xxxii.]
[Ordered, January 12, 1905, that paragraph 1 of rule 23 be amended so as to read as follows:]
PRINTING RECORDS. 1. The clerk shall
, upon the docketing of a case, forthwith cause an estimate to be made of the cost of printing the record and of his fee for preparing it for the printer and supervising the printing, and shall notify the party docketing the case of the amount of the estimate. If he shall not pay it within fifteen days in ordinary cases, and within three days in preference cases, after the date of such notice, the clerk shall notify the adverse party, and he may pay it. If neither party shall pay it, and for want of such payment the record shall not have been printed when a case is reached for hearing, the case may be dismissed at the discretion of the court.
[Paragraphs 2-4, inclusive, as amended May 11, 1897.]
2. The clerk shall cause the record in all cases to be printed forthwith after the payment of such estimate, and shall immediately thereafter furnish to the counsel of each party whose appearance shall have been entered, three copies of the printed record, taking a receipt therefor, and the parties may, by written stipulation filed prior to the printing of the record, agree that only parts of the record shall be printed, and the same may be heard only on the parts so printed, but the court may direct the printing of other parts of the record.
3. The clerk shall not take to the printer the original transcript on file, but shall cause copies to be made for the printer of such original papers sent up under rule 14, or other original papers, as are necessary to be printed.
4. The clerk shall cause at least twenty-five copies of the record to be printed, and may print a larger number on the request of either party on payment of the amount necessary for the printing of such extra copies.
[Ordered, December 8, 1905, that paragraph 5 of rule 23 be amended so as to read as follows:]
5. The clerk shall supervise the printing and see that the printed record is properly indexed. There shall be omitted from the printed transcripts the following:
(1) Commissions to take testimony, and the formal captions to all depositions and the certificates of commissioners as to the taking of the depositions, except in cases where objections have been made to the depositions on account of defects in caption or certificate.
(2) All process in the nature of subpoenas, citations, summons and subpænas in chancery, unless from the assignment of errors it appears that some issue is raised which makes it necessary for the court to inspect such writs, and then only such as are involved.
In every transcript wherein any pleading, exhibit or other paper appears at more than one place, such pleading, exhibit or other paper shall be printed at the place it first appears in said transcript and not thereafter; but the omission shall be indicated by apt notations and references to the pages of the printed record where it appears.
The clerk sħall distribute the printed copies to the judges of the court and to the reporter from time to time, as required. If the cost of printing the record, together with the clerk's fee for supervising the same, shall be less than the amount estimated and paid, the difference shall be refunded by the clerk to the party paying the same. If the actual cost and the clerk's fee shall exceed the clerk's estimate, the amount of such excess shall be paid to the clerk before he shall deliver or file the printed record or any copies thereof.
[Paragraphs 6 and 7 as amended May 11, 1897.]
6. In case of reversal, affirmance or dismissal with costs, the amount of the costs of the printing of the record and of the clerk's fee for supervising the same shall be taxed against the party against whom costs are given, and shall be inserted in the body of the mandate or other proper process.
7. The clerk shall receive from either party, and use as parts of the printed record so far as the same may be of proper size and type, any portions which may have been printed in any other court, and also printed copies of patents and exhibits, allowing the party furnishing the same such sum therefor as the clerk deems reasonable, tu be added to and form a part of the costs of printing.
[Ordered, January 12, 1905, that paragraph 1 of rule 24 be amended so as to read as follows:)
BRIEFS. 1. The counsel for the plaintiff in error, appellant or petitioner shall file with the clerk of this court, at least fifteen days in ordinary cases, and in five days in preference cases, before the case is called for argument, twenty copies of a printed brief, one to be signed in handwriting by an attorney of this court, who has entered an appearance in the
One copy of the brief shall, on application, be furnished to each of the counsel engaged upon the opposite side.
[Paragraph 2 stands as originally adopted. See page xxxiii.] [Ordered that paragraph 3 of rule 24 be amended so as to read as follows:]
3. The counsel for defendant in error, appellee or respondent shall file with the clerk of this court, at least five days before the case is called for argument in ordinary cases, and before the case is called for argument in preference cases, twenty copies of a printed brief. His brief shall be of a like character with that required of the plaintiff in error, appellant or petitioner, except that no specification of errors shall be required and no statement of the case, unless that presented by the plaintiff in error, appellant or petitioner is controverted.
[Paragraphs 4, 5, and 6 stand as originally adopted. See page xxxiil.]
25. [This rule was amended February 27, 1894, so as to read as follows:]
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 the court below shall be entitled to open and conclude the argument.
2. Only two counsel will be heard for each party on the argument of a case.
3. One hour will be allowed for the plaintiff in error or appellant to open and present his case, and one hour will be allowed to the defendant in error or appellee to answer; thirty minutes will then be allowed to the plaintiff in error or appellant to reply. No more time will be allowed for argument without special leave of the court.
26. FORM OF PRINTED ARGUMENTS AND BRIEFS. . All arguments, briefs, motions and petitions for rehearing printed for the use of the court must be printed on white book paper, size of paper page, trimmed, to be 61x91 inches; size of type page to be 4x7 inches, exclusive of folio line; margin to be properly arranged with view of rebinding. Type must not be smaller than long primer.
[As amended May 29, 1900.]
[As originally adopted. See page xxxiv.]
29. [Ordered, January 12, 1905, that rule 29 be amended so as to read as follows:]
REHEARING. A petition for a rehearing after judgment can be presented only during the term at which judgment is entered, and within twenty days after such entry, unless by special leave granted by the court, or one of the judges, and must be printed and briefly and distinctly state its grounds without argument, and be supported 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.
[As originally adopted. See page xxxv.)
31, [As originally adopted. See, also, order of the supreme court establishing a table of fees for the circuit courts of appeals, page cxxxix.]
32. [Ordered, January 12, 1905, that rule 32 be amended so as to read as follows:]
MANDATE. Mandates shall issue at any time after twenty-one days from the date of the decision, unless an application for a rehearing has been granted or is pending. A copy of the opinion of this court shali accompany the mandate when a new trial or further proceedings are to be had in the lower court, and the charge for such copy shall be taxed in the costs of the case.
Provided, that in all cases entitled to precedence in this court under section 7 of the act approved March 3, 1891, and amendments thereto, the mandate or other proper process shall issue after the expiration of seven days from the date of the decision, unless otherwise ordered by the court or one of the judges.
[As originally adopted. See page xxxvi.]
[Ordered, January 12, 1905, that rule 35, adopted June 23. 1892, be amended so as to read as follows:]
ORDER IN RELATION TO ASSIGNMENT OF CASES FOR HEARING. .
Unless otherwise ordered by the senior circuit judge, thirty days prior to the opening of a regular session of this court the clerk is directed to assign cases for hearing as follows:
At Atlanta, Georgia, four cases per day for the first three days of each week;
At Montgomery, Alabama, four cases per day for the first three days of each week;
At Ft. Worth, Texas, four cases per day for the first three days of each week;
At New Orleans, Louisiana, two cases per day for the first three days of each week.
The above assignments shall be made in accordance with existing law regulating the return of appeals, writs of error and other appellate proceedings in the Fifth judicial circuit, provided that cases entitled by law to preference in hearing and bankruptcy cases shall be first