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 the court. [As originally adopted.] 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. 17. [This rule was amended October 22, 1894, and also on November 21, 1898. so as now to read as follows:] 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 calendar session, as provided in rules 3 and 37. And if a case is called for hearing at two calendar sessions successively, and upon the call at the second session 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. [As originally adopted. See page xxx.] 19. [As originally adopted. See page xxx.] 20. [As originally adopted. See page xxx1.] 21. [As originally adopted. See page xxxii.] 22. xci [The portion of the rule in brackets was added by amendment, June 22, 1893. Otherwise the rule reads as originally adopted.] PARTIES NOT READY. 1. Where no counsel 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. 3. When a case is reached in the regular call of the docket, and there is no appearance for either party, the case shall be dismissed at the cost of the plaintiff. [4. All causes shall stand for hearing when the time allowed for printing the records and the briefs of both parties shall have expired: provided, however, that causes may be heard when the records and briefs therein are printed, though the time allowed for printing records and briefs may not have expired.] 23. [As amended. Paragraph 8 of the amendment adopted October 8, 1894. establishing the clerk's fees for preparing records, is repealed by the order of the supreme court establishing a table of fees for the circuit courts of appeals. See page cxxxix. The rule now reads as follows:] PRINTING RECORDS. 1. The clerk shall supervise the printing of all records, and upon the docketing of a case shall forthwith cause an estimate to be made of the cost of printing the record and his fee for preparing it for the printer and for supervising the printing thereof, and shall at once notify the attorney for the plaintiff in error, or appellant of the amount of such estimate, which shall be paid to the clerk within ten days after such notice. If not so paid the writ of error, or appeal, may be dismissed upon the motion of the opposite party or by the court of its own motion. 2. After the payment to him of such estimate the clerk shall cause at least twenty-five (25) copies of the record to be printed forthwith, shall file the same and shall furnish to each of the respective parties three (3) copies thereof, and take a receipt therefor. 3. Parties may agree by written stipulation filed with or prior to the filing of the record that parts only of the record shall be 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 plaintiff in error or appellant may, within 10 days after the case shall be docketed in this court, file with the clerk a statement 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 15 days after service of such statement, may designate in writing, filed with the clerk, additional parts of the record which he thinks material, and if he shall not do so he shall be held to have consented to the hearing of the parts designated by the plaintiff in error or appellant. If parts of the record shall be so designated by one or both parties, the clerk shall print those parts only, and the court will consider nothing but those parts of the record. 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 which the court shall think proper. If good cause be shown the time within which the statement of the parts of the record is to be filed with the clerk by either party, as above limited, may be enlarged by the court in session or by either circuit judge if eligible to sit in the cause. 4. If the cost of printing and supervision shall be less than the amount estimated and paid, the clerk shall refund the difference to the party paying the same. If the cost is greater than the estimate the amount of such excess shall be paid to the clerk before he shall file the printed record or deliver any copies thereof. 5. In case of reversal, affirmance, or dismissal, with costs, the amount paid for printing and supervision shall be taxed against the party against whom the costs are given, and shall be inserted in the mandate or other proper process. [Paragraph 6 of rule 23 was amended November 21, 1898, so as to read as follows:] 6. In any case where the record shall have been printed in the court below, either circuit judge may, on the written application of the plaintiff in error or appellant, order that such printed record be used in this court. In such case the judge shall require, as a condition of making the order, a certificate of the clerk of this court that the record is in accordance with the printing rules and is properly indexed, in which case the supervision fee provided in table of costs, rule 31, shall be charged and collected by the clerk. 7. The clerk of this court shall receive proposals for printing, which shall be submitted to the senior circuit judge, who may in his discretion award such printing to the lowest and best bidder, and all such printing shall be done by the person to whom the same is so awarded. And when a case shall be heard upon a record printed in the court below the cost for printing shall be taxed on the basis of such bid for printing, except when the parties otherwise agree. 24. [This rule, with amendments down to the time of preparing 11 C. C. A. for the press, appears on page lxix thereof. See 66 Fed. vi. It was further amended February 25, 1895, so as to read as follows:] BRIEFS. 1. The counsel for the plaintiff in error shall file with the clerk of this court within twenty-five days after the filing of the printed copies of the record, as required in rule 23 as amended, twenty 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 order 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 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. 3. The counsel for a defendant in error or an appellee shall file with the clerk twenty printed copies of his brief, within forty days after the filing of the printed record, as required by rule 23. His brief shall be of a like character with that required of the plaintiff in error or appellant, except that no statement of the case shall be required, unless that presented by the plaintiff in error or appellant is controverted. 4. When, according to this rule, a plaintiff in error or an appellant is in default, the case may 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 adversary, and by request of the court. 5. 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 adverse party will be entitled to be heard by two counsel. 25. [As originally adopted. See page xxxiv.] 26. [This rule was amended January 16, 1892, so as to read as follows: "Form of printed records, arguments, and briefs. All records, arguments, and briefs printed for the use of this court shall be in small pica type, twenty-four pica ems to a line, thirty-five lines to a page, leaded with four-to-pica leads, with an index and a suitable cover containing the title of the court and cause, the court from which the case is brought into this court, and the number of the case. Size of pages to be 94x64 inches, except that in patent cases the size of the pages shall be 104x7% inches; that is to say, large enough to bind in copies of patent-office drawings and specifications without folding. Records printed in the courts below may be filed and used in this court if they conform to this rule." It was again amended January 2, 1894, so as to read as follows:] FORM OF PRINTED RECORDS, ARGUMENTS, AND BRIEFS. 1. All records shall be of a uniform size, printed in small pica type, 24 pica ems to a line, 48 lines to a page, solid, with an index, and a suitable cover containing the title of the court and cause, the court from which the case is brought to this court, and the number of the case; size of pages to be 94x64 inches, except that in patent cases the size of the pages shall be 1034x75% inches; that is to say, large enough to bind in copies of patent-office drawings and specifications without folding. 2. All arguments and briefs of attorneys shall be printed, and conform as near as practicable to the size of the printed record. 27. [As originally adopted. See page xxxiv.] 28. [This rule as originally adopted appears in 11 C. C. A. lxxi, 47 Fed. xii. It was further amended October 22, 1894, so as to read as below. Paragraph 4 of the amendment, establishing the clerk's fees for opinions of the court, has been repealed by the order of the supreme court establishing a table of fees for the circuit courts of appeals, see page cxxxix.] OPINIONS OF THE COURT. 1. All opinions delivered by the court shall, immediately upon the delivery thereof, be handed to the clerk to be recorded. 2. The opinions of the court shall be printed under the supervision of the clerk by the printer to whom the court printing has been awarded in accordance with paragraph 7, rule 23. 3. Opinions printed under the supervision of the clerk need not be copied 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. REHEARINGS. A petition for rehearing after judgment can be presented only within thirty days after the day when the printed opinion of the court is returned by the printer to the clerk, and can be obtained by counsel for the parties, (which date the clerk shall note upon the appearance docket), unless by special leave granted during such thirty days; and must be printed, and briefly and distinctly state its grounds, 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 deires it, and a majority of the court so determines. [Amendment adopted June 22, 1893.] |