50 L. Ed. 226, followed.-Amadeo v. Northern | tion issued and acceptance of service thereon Assur. Co., 26 S. Ct. 507, 201 U. S. 194, 50 L. Ed. 722. Present members of a state board of election commissioners which under Burns' Ann. made by the attorney of record of such appellee during his lifetime. Judgment (1906) 85 P. Lumber Co. v. Ward, 28 S. Ct. 239, 208 U. S. 459, 16 Okl. 131, affirmed.-Southern Pine 126, 52 L. Ed. 420. St. Ind. 1908, § 6897, is a continuing board, will be substituted as plaintiffs in error on a writ An erroneous order of substitution on death to review a judgment of a state court against of a state official who was the only party appeltheir predecessors.-Marshall v. Dye, 34 S. Ct. lee may be vacated by the federal Supreme Court 92, 231 U. S. 250, 58 L. Ed. 206, dismissing_ap-at a subsequent term; there being no final judgpeal Ellingham v. Same, 99 N. E. 1, 178 Ind. ment in the case.-Pullman Co. v. Croom, 34 S. 336. Ct. 182, 231 U. S. 571, 58 L. Ed. 375. ror. Before appeal or writ of er See 2 Cent. Dig. App. & E. §§ 1842-1845. 336. Defects, objections, and amendment. See 2 Cent. Dig. App. & E. §§ 1868-1876. Where an appeal from a decree rendered for the appointment of a new receiver was taken in The death of the insured after judgment in the name of the old receiver, and the new refavor of defendant in an action on the policy, ceiver went on the appeal bond, the supreme in which the insured was originally named as court, on motion, permitted the new receiver to the sole plaintiff, does not require the dismissal be substituted as appellant, but denied appellee's of a writ of error sued out to review the judg-counter motion to dismiss the appeal.-Bowden v. ment without reviving the action, suggesting Johnson, 107 U. S. 251, 2 S. Ct. 246, 27 L. Ed. the death on the record, or giving notice to the 386. succession, where to meet the plea that the plaintiff had no interest in the cause of action, the caption in the declaration was amended to show that the action was brought for the use of a specified corporation, and an averment of an assignment of the policy to such corporation was inserted in the body of the pleading.-Royal Ins. Co. v. Miller, 26 S. Ct. 46, 199 U. S. 353, 50 L. Ed. 226, followed.-Amadeo v. Northern Assur. Co., 26 S. Ct. 507, 201 U. S. 194, 50 L. Ed. 722. The death of the State Comptroller, against whom in his official capacity mandamus has been brought, precludes a suing out of a writ of error to review a decree denying the writ.-State of Florida ex rel. Wailes v. Croom, 33 S. Ct. 109, 226 U. S. 309, 57 L. Ed. 235, dismissing writ of error 57 So. 420, 62 Fla. 284. 333. One of several defendants in a bill in equity brought in a state circuit court, who allowed a decree pro confesso to be taken against him in such court while the others defended, and appealed to the supreme court of the state, and from thence to the supreme court of the United States, cannot, after the latter appeal, make himself a party to it, against the objection of the other appellants, so as to control the case on such appeal.-Marsh v. Nichols, 120 U. S. 598, 7 S. Ct. 704, 30 L. Ed. 796. which her husband is made a formal party, as reIn an action against a married woman to quired by the law of the state, a writ of error will not be dismissed for failure to make him a party, where the citation has been served on him, and he was not a party to the judgment rendered in favor of the wife.-Marchand v. Livandais, Pending appeal or writ of 127 U. S. 775, 8 S. Ct. 1389, 32 L. Ed. 324. The death of the State Comptroller held to abate appeals to the federal Supreme Court taken under Judicial Code, § 266 (Act March 3, 1911, c. 231, 36 Stat. 1162 [U. S. Comp. St. Supp. 1911, p. 236]), from orders of the Circuit Court denying applications before three judges for interlocutory injunction; there being no statutory authority for bringing in his successor, though the State Treasurer was also a party, but no injunction was asked against him.-Pullman Co. v. Croom, 34 S. Ct. 182, 231 U. S. 571, 58 L. Ed. 375. 334. Continuance or revival of proceedings. See 2 Cent. Dig. App. & E. § 1848, 1851-1863; 1 Cent. Dig. Abate. & R. § 432. On appeal from a final decree for an injunction in a suit by a partnership, where one of the partners dies, the survivors may, after notice to his legal representatives to appear, and their failure to do so, move that the action abate as to him, and proceed at their suit as survivors. -Moses v. Wooster, 115 U. S. 285, 6 S. Ct. 38, 29 L. Ed. 391. The prosecution of an appeal against a firm instead of against the individual partners is a defect which may be cured by amendment in the supreme court.-Estis v. Trabue, 128 U. S. 225, 2 S. Ct. 58, 32 L. Ed. 437; United States v. Schoverling, 146 U. S. 76, 13 S. Ct. 24, 36 L. Ed. 893, affirming judgment (C. C.) In re Schoverling, 45 F. 349. Where, to a joint judgment against several defendants, two of them sue out a writ of error without joining the others, or without a severance, a motion for leave to amend by joining the other defendants, or by a severance, will be denied.-Mason v. United States, 136 U. S. 581, 10 S. Ct. 1062, 34 L. Ed. 545. term of the supreme court of the District of CoOn appeal from the special to the general lumbia the judgment of the special term against defendant was affirmed, and it was further adjudged that plaintiff recover on his judgment against defendant and its sureties (naming them) on the appeal, and have execution against them, and each of them. The writ of error to the judgment of the general term recited the judgment as against defendant, and in the citation defendant was described as plaintiff in error, no mention being made of the sureties in the citation or supersedeas bond. The writ was dismissed because the sureties were not joined therein with defendant. Held, that a motion to rescind the judgment of dismissal, to restore the cause, and to amend the writ by inserting therein the names of the sureties, as plaintiffs in error, would be granted.-Inland & Seaboard Coasting Co. v. Tolson, 136 U. S. 572, 10 S. Ct. 1063, 34 L. Ed. Proceedings to make the representatives of a deceased appellee parties are rightfully taken in the Supreme Court of the United States rather than in the court below, where the appeal had not only been allowed, but the cita- 539. VII. REQUISITES AND PROCEEDINGS | the date of the entry, and filing of the judgment FOR TRANSFER OF CAUSE. 338. Nature and operation of limitations in general. See 2 Cent. Dig. App. & E. §§ 1879-1882; 3 Cent. Dig. App. & E. § 3057. The right of appeal from the court of private land claims on the part of the United States continues to exist, under section 9 of the act creating that court (26 Stat. 858), until six months next after the receipt by the attorney general of a statement of the case and the points decided. United States v. Pena, 20 S. Ct. 165, 175 U. S. 500, 44 L. Ed. 251. 343. Commencement limitation. of period of See 2 Cent. Dig. App. & E. §§ 1889-1904; 42 Cent. Dig. Refer. § 216. 345. - Effect of motion for new trial or rehearing. See 2 Cent. Dig. App. & E. §§ 1895, 1896. The time limited for writ of error to the United States supreme court to review a state supreme court judgment, concerning which a rehearing has been requested and refused, runs from the date of such refusal.-Texas Pac. Ry. Co. v. Murphy, 111 U. S. 488, 4 S. Ct. 497, 28 L. Ed. 492. in the record of the court's proceedings.-Polleys v. Black River Imp. Co., 113 U. S. 81, 5 S. Ct. 369, 28 L. Ed. 938. In a suit in equity, the final decree adjudged that a certain sum was due to the administratrix of F., and that, if in 90 days from the date of the decree the court should be satisfied that a certain sum paid for the purchase of incumbrances and notes had inured to the benefit of F. or his estate, that sum should be credited on the amount decreed to be paid. The decree was entered October 10, 1885. Heid, under Rev. St. § 1008, providing that appeals from decrees in equity must be taken within two years after entry of decree, that the date of the decree was October 10, 1885, and an appeal taken December 30, 1887, was too late.-Radford v. Folsom, 131 U. S. 392, 9 S. Ct. 792, 33 L. Ed. 203. 348. Service of notice or copy of judgment or order. See 2 Cent. Dig. App. & E. §§ 1900-1904; 42 Cent. Dig. Refer. § 216. The sufficiency of the reasons for the delay of the United States attorney in giving a notice to the attorney general of a judgment confirming a private land claim, whereby the time for an appeal by the United States is extended, is shown by an allowance of the appeal by a justice whose attention was called to this question.-United States v. Pena, 20 S. Ct. 165, 175 U. S. 500, 44 L. Ed. 251. 349. Effect of disability or death of party. See 2 Cent. Dig. App. & E. §§ 1905-1912. Rev. St. § 1008, declares that an appeal to the supreme court must be taken within two years after entry of the decree appealed from, "provided that, where a party entitled to *' 本 take an appeal is * * * imprisoned, * such appeal may be taken within two years after" the decree, exclusive of the term of such disability. Held that, where a decree was entered on April 17, 1878, and the party entitled to appeal therefrom was imprisThe time that a rehearing was pending in a oned on February 7, 1879, the statute, having state supreme court will be deducted in comput-fact of imprisonment.-McDonald v. Hovey, 110 commenced to run, was not interrupted by the ing the time limited from the rendition of judg- U. S. 619, 4 S. Ct. 142, 28 L. Ed. 269. ment in which to bring error in the supreme court of the United States.-Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31, 14 S. Ct. 4, 37 L. Ed. 986; Northern Pac. R. Co. v. Holmes, 155 U. S. 137, 15 S. Ct. 28, 39 L. Ed. 99. The death of a party to a cause does not extend the 20 days' limitation for taking an appeal from the Supreme Court of the District of Columbia to the Court of Appeals of the district, prescribed by rule 10 of the latter 1893, § 6.-Ex parte Dante, 33 S. Ct. 579, 228 court, promulgated under Act Cong. Feb. 9, U. S. 429, 57 L. Ed. 905. ing in time. Where a case is pending in a territorial supreme court on motion for rehearing at the time the territory becomes a state, and is continued in the state court instead of being removed to the 351. Taking and perfecting proceedUnited States circuit court, as it might have been, the time that such petition was pending in the territorial court will not be deducted from the time limited for bringing error from the judgment of the territorial court.-Northern Pac. R. Co. v. Holmes. 155 U. S. 137, 15 S. Ct. 28, 39 L. Ed. 99. Judgment of the Court of Claims held not final so as to set in motion the time for taking appeal until motion for new trial has been disposed of.-(1912) United States v. Ellicott, 32 S. Ct. 334, 223 U. S. 524, 56 L. Ed. 535, reversing judgment (1908) Ellicott Machine Co. v. United States, 43 Ct. Cl. 469. ~347. See 2 Cent. Dig. App. & E. §§ 1915-1919. Under Rev. St. § 1008, providing that no judgment of a state court can be reviewed in the supreme court, unless the writ of error is brought within two years after entry thereof, a writ of error is not brought, in the legal sense, until it is filed in the court which rendered the judgment.-Scarborough v. Pargoud, 108 U. S. 567, 2 S. Ct. 877, 27 L. Ed. 824. An appeal is not "taken," within the twoyears limitation (Rev. St. § 1008), until the papers are filed in the court below.-Credit Co. v. Arkansas Cent. Ry. Co., 128 U. S. 258, 9 S. Rendition or entry of judg- Ct. 107, 32 L. Ed. 448. ment or order. See 2 Cent. Dig. App. & E. §§ 1897-1899; 42 Cent. Dig. Refer. § 216. Under Rev. St. § 1008, providing that no decree can be reviewed by the supreme court unless the appeal is taken within two years aftUnder Rev. St. § 1008, providing that writs er the entry of such decree, a cross appeal is of error must be brought within two years after not "taken" until the petition and order for the entry of the judgment sought to be review- the appeal, and the appeal bond, are filed in ed, the statute of limitations begins to run from the court which rendered the decree.-Farrar v. Churchill, 135 U. S. 609, 10 S. Ct. 771, 34, the supreme court." No bill of exceptions had L. Ed. 246. A writ of error is not brought in the legal meaning of the term until it is filed in the court which rendered the judgment. Judgment (1907) 152 F. 925, 82 C. C. A. 73, affirmed.-Old Nick Williams Co. v. United States, 30 S. Ct. 221, 215 U. S. 541, 54 L. Ed. 318. 352. Extension of time. See 2 Cent. Dig. App. & E. §§ 1920-1923. 353. Judicial authority. See 2 Cent. Dig. App. & E. §§ 1920-1922. A final decree was entered in the circuit court January 22, 1883, and on the same day an appeal was allowed, but it was never prosecuted. On January 22, 1885, a justice of the supreme court allowed an appeal in the case, and approved the appeal bond. The papers were presented to the circuit court January 27, 1885. Held, that the appeal was not taken within two years, as required by Rev. St. § 1008, and the defect was not aided by entering the order allowing the appeal, in the circuit court, on January 27th as of January 22d.-Credit Co. v. Arkansas Cent. Ry. Co., 128 U. S. 258, 9 S. Ct. 107, 32 L. Ed. 448. been filed in the case, and no writ of error or appeal allowed. Plaintiff's motion to revoke the supersedeas created by the bond was denied. Held, that the cause would be docketed in the supreme court, and dismissed on plaintiff's motion.-Tuskaloosa N. Ry. Co. v. Gude, 141 U. S. 244, 11 S. Ct. 1004, 35 L. Ed. 742. 359. Authority of court or judge. See 2 Cent. Dig. App. & E. §§ 1936-1940; 42 Cent. Dig. Refer. § 215. The supreme court of the District of Columbia, while sitting in special term, may allow an appeal to the federal supreme court from one of its final decrees rendered at a general term.-Richards v. Mackall, 113 U. S. 539, 5 S. Ct. 535, 28 L. Ed. 1132. Since Const. Colo. art. 6, § 8, provides that the judge of the supreme court having the shortest term to serve, not holding his office by appointment or election to fill a vacancy, shall be the chief justice, and, in case of his absence, the judge having in like manner the next shortest term to serve shall preside in his stead, the allowance of a writ of error by one of the associate justices of that court, wherein he recites the absence of the chief 356. Effect of delay or failure to justice, and styles himself the presiding justice, take proceedings. See 2 Cent. Dig. App. & E. §§ 1926, 1927. An appeal or writ of error not taken within the time prescribed by law will be dismissed.-Whitsitt v. Union Depot & R. Co., 122 U. S. 363, 7 S. Ct. 1248, 30 L. Ed. 1150. A decree sustained demurrers to an intervening petition against a receiver, and dismissed the same without prejudice. The record failed to show the specific grounds of dismissal. Held that, even if the court was of opinion that a judgment at law should first have been obtained, and on that ground refused to consider the claim upon its merits, yet the decree should not be reversed if, assuming all the allegations to be true, the petition disclosed cause for relief.-Pennsylvania R. Co. v. Wabash, St. L. & P. Ry. Co., 157 U. S. 225, 15 S. Ct. 576, 39 L. Ed. 682. no An appeal to the federal Supreme Court, allowed on June 12, 1906, to review a judgment of the Supreme Court of the territory of Oklahoma, rendered on September 7, 1905, will not be dismissed because not docketed until August 10, 1906, for the reason that the counsel who originally forwarded the record were not attorneys of the federal Supreme Court, and hence not qualified to enter their appearance, where no motion to docket and dismiss under rule 9 was made. Judgment (1906) 85 P. 459, 16 Okl. 131, affirmed.-Southern Pine Lumber Co. v. Ward, 28 S. Ct. 239, 208 U. S. 126, 52 L. Ed. 420. 357. Relief in case of failure to pro- See 2 Cent. Dig. App. & E. §§ 1928-1931; 42 Cent. is a sufficient compliance with Rev. St. U. S. § 999, which provides for the issuance of writs of error by the chief justice of the court rendering the judgment, or by a justice of the supreme court of the United States.-Butler v. Gage, 138 U. S. 52, 11 S. Ct. 235, 34 L. Ed. 869. When an appeal to the supreme court has been granted by a circuit or district court, the case passes beyond the jurisdiction of the latter, and a subsequent order by it, on further hearing, setting aside the allowance of the appeal, is ineffectual.-Rector v. Lipscomb, 141 U. S. 557, 12 S. Ct. 83, 35 L. Ed. 857. The supreme court will not review the judgment of a state court in error, unless the record shows that the writ has been allowed by a justice either of the supreme court or of the state court.-Northwestern Union Packet Co. v. Home Ins. Co. of New York, 154 U. S. 588, 14 S. Ct. 1168, 20 L. Ed. 463. An application to the federal supreme court for writ of error to a state court is not entertained, unless at the request of one of the members of the court, concurred in by his associates. In re Robertson, 156 U. S. 183, 15 S. Ct. 324, 39 L. Ed. 389. An appeal may be allowed by an associate justice of the court of private land claims, by virtue of section 9 of the act creating that court, which provides for appeals in the same manner and upon the same conditions as appeals from circuit courts of the United States, in which, by Rev. St. U. S. § 999, any judge of such court has the power to act.-United States v. Pena, 20 S. Ct. 165, 175 U. S. 500, 44 L. Ed. 251. court. See 2 Cent. Dig. App. & E. §§ 1941, 1949, 1953. An appeal to the federal Supreme Court 360. Prayer and allowance in open from the Supreme Court of Porto Rico, which was prayed within the statutory time, will not be dismissed because not allowed by the court within that time.-Cardona_v. Quinones, 36 S. Ct. 346, 240 U. S. 83, 60 L. Ed. 538. (B) PETITION OR PRAYER, ALLOWANCE, AND CERTIFICATE OR AFFIDAVIT. 358, Necessity of allowance or leave. See 2 Cent. Dig. App. & E. §§ 1932-1935. Defendant in the circuit court filed a supersedeas bond, which alleged that defendant had "prosecuted an appeal or writ of error to An application to the court in session for a writ of error will not be entertained, except when a justice of the court has indorsed on the record a request that counsel be allowed to proceed in that way. Ex parte Ingalls, 139 U. S. 548, 11 S. Ct. 652, 35 L. Ed. 266. 362. Specification of errors. See 2 Cent. Dig. App. & E. §§ 1960, 1961; 3 Cent. Dig. App. & E. §§ 3282-3284. Alleged errors of law in the opinion of the court below, which was engaged with a dis Exemptions. cussion of evidence and the inferences which |-Brown v. McConnell, 124 U. S. 489, 8 S. Ct. might properly be drawn from it, will not be 559, 31 L. Ed. 495; Stewart v. Masterson, 124 considered by the Supreme Court of the United U. S. 493, 8 S. Ct. 561, 31 L. Ed. 507. States on a writ of error if they are not contained in the assignment of errors filed with 374. the petition for the writ, where, on the whole, it is clear that the facts found justify the judgment rendered.-Behn, Meyer & Co. v. Campbell & Go Tauco, 27 S. Ct. 502, 205 U. S. 403, 51 L. Ed. 857. 219. See 2 Cent. Dig. App. & E. §§ 2005-2010; 22 Cent. Dig. Ex. & Ad. § 1932; 42 Cent. Dig. Refer. §§ 218, No bond for prosecution of the suit or to answer in damages or costs is required, under Rev. St. U. S. § 1001, on bringing to the Unit364. Term or day to which appeal ed States supreme court, on writ of error or may be taken or writ made re-appeal, by direction of the comptroller of the turnable. currency, a suit against a receiver of a national bank.-Pacific Nat. Bank of Boston v. Mixter, See 2 Cent. Dig. App. & E. §§ 1969-1976. 114 U. S. 463, 5 S. Ct. 944, 29 L. Ed. 221. Parties by and to whom security to be given. On appeal from the circuit court to the supreme court, a stipulation of parties extend-375. ing the time of filing the appeal bond and certificate of evidence is equivalent to an order of the same date renewing the allowance of the appeal in open court in the presence of both parties.-Goodwin v. Fox, 120 U. S. 775, 7 S. Ct. 779, 30 L. Ed. 815. 365. Order for appeal or writ of er ΤΟΣ. See 2 Cent. Dig. App. & E. §§ 1784, 1977-1988. Acceptance of an appeal bond more than two years after the decree appealed from was rendered does not have the effect of allowing a new appeal.-Killian v. Clark, 111 U. S. 784, 4 S. Ct. 700, 28 L. Ed. 599. It is no objection that appellees are not individually named in the order allowing an appeal, where the names of all are given in the appeal bond.-Richardson v. Green, 130 U. S. 104, 9 S. Ct. 443, 32 L. Ed. 872. 366. Certificate as to grounds. See 2 Cent. Dig. App. & E. §§ 1774-1776, 1989-1992; 31 Cent. Dig. J. P. § 751. Where an appeal is taken from the circuit court to the supreme court upon a question of jurisdiction, under section 5 of the judiciary act of March 3, 1891, the certificate of the jurisdictional question must be granted by the court below during the term at which the judgment or decree was entered.-Colvin v. City of Jacksonville, 158 U. S. 456, 15 S. Ct. 866, 39 L. Ed. 1053. See 2 Cent. Dig. App. & E. §§ 2011-2021; 42 Cent. Dig. Refer. § 221. 376. Obligees. See 2 Cent. Dig. App. & E. §§ 2011-2016. It cannot affect the validity of an appeal bond that other parties besides the one in whose favor the decree appealed from was rendered are named in it as obligees.-Hill v. Chicago & E. R. Co., 129 U. S. 170, 9 S. Ct. 269, 32 L. Ed. 651. 377. Obligors. See 2 Cent. Dig. App. & E. §§ 2017-2021; 42 Cent. Dig. Refer. § 221. Where an appeal is allowed to numerous parties, severally, on giving bond in a certain sum, a bond is insufficient when given by only one appellant as principal, although it purports to be in behalf of all appellants and the condition is for the prosecution of the appeal by each.-Farrell v. West Chicago Park Com'rs, 21 S. Ct. 609, 645, 181 U. S. 404, 45 L. Ed. 916, 924. See 2 Cent. Dig. App. & E. §§ 2029-2035. It is in the discretion of a judge to accept an appeal bond in which the sureties are not (C) PAYMENT OF FEES OR COSTS, AND jointly or severally bound for the full amount BONDS OR OTHER SECURITIES. Federal courts, see Courts, 356. In circuit court of appeals, see Courts, of the obligation, but each of them severally for a specified part only.-New Orleans Ins. Co. v. Albro Co., 112 U. S. 506, 5 S. Ct. 289, 405. 28 L. Ed. 809. 370. Payment of fees on appealing.384. Form and contents of bond or See 2 Cent. Dig. App. & E. § 1999. Where the record on appeal to the supreme court of the United States has been printed by the appellant, the cause may be docketed without securing the payment of the clerk's fee, chargeable under Sup. Ct. Rule 24, § 7, in connection with the printing, but the printed copies cannot be delivered to the justices or the parties for use on the final hearing, or on any motion in the progress of the cause, unless the fee is paid when demanded by the clerk in time to enable him to make his examinations and perform his other duties in connection with the copies.-Bean v. Patterson, 110 U. S. 401, 4 S. Ct. 23, 28 L. Ed. 190. 372. Necessity of security to perfect appeal or other proceeding. See 2 Cent. Dig. App. & E. §§ 2001-2010; 42 Cent. Dig. Refer. §§ 218, 221. undertaking. See 2 Cent. Dig. App. & E. §§ 2049-2056; 42 Cent. Dig. Refer. § 221. The failure of the appeal bond to specify the term at which the judgment appealed from was rendered is no ground for dismissal.-New Orleans Ins. Co. v. E. D. Albro Co., 112 U. S. 506, 5 S. Ct. 289, 28 L. Ed. 809; Davis v. Wakelee, 156 U. S. 680, 15 S. Ct. 555, 39 L. Ed. 578. An appeal cannot be entertained where the appeal bond, which is made a prerequisite to appellate jurisdiction, does not provide, as required by Rev. St. 1887, par. 859, that the appeal shall be prosecuted with effect, and mentions no obligge, and is for less than the proper amount.Swan v. Hill, 155 U. S. 394, 15 S. Ct. 178, 39 L. Ed. 197. 386. Approval of bond or undertaking. See 2 Cent. Dig. App. & E. §§ 2059-2063; 42 Cent. Dig. Refer. § 221. The right to approve the security on appeal or error rests in the court, and cannot be delegated.-Haskins v. St. Louis & S. E. Ry. Co., 109 U. S. 106, 3 S. Ct. 72, 27 L. Ed. 873. 387. Delivery or filing and service of bond or undertaking. See 2 Cent. Dig. App. & E. §§ 2064-2070; 42 Cent. Dig. Refer. § 221. Where a bond or undertaking is not given or filed within the time set by the court or stat. ute, the bill will be dismissed.-Killian v. Clark, 111 U. S. 784, 4 S. Ct. 700, 28 L. Ed. 599. Where no application for permission to file the appeal bond has been made for nearly four years from the date of the decree appealed from, the appeal will be dismissed.-Beardsley v. Arkansas & L. Ry. Co., 158 U. S. 123, 15 S. Ct. 786, 39 L. Ed. 919. 392. Waiver of security or of defects. See 2 Cent. Dig. App. & E. §§ 2089-2094; 42 Cent. Dig. Refer. §§ 218, 221. Failure of appellants to execute an appeal bond, due to a waiver thereof by the guardian ad litem and next friend of an infant appellee, does not deprive the appellate court of jurisdiction. Kingsbury v. Buckner, 134 U. S. 650, 10 S. Ct. 638, 33 L. Ed. 1047. [dered, and security is taken out of court or after the term, a citation is only necessary to show that the appeal has not been abandoned by the failure to furnish the security before the 436, 5 S. Ct. 1108, 29 L. Ed. 144; Richardson adjournment.-Dodge v. Knowles, 114 U. S. v. Green, 130 U. S. 104, 9 S. Ct. 443, 32 L. Ed. 872. On writ of error to a United States circuit court, where no citation has been issued as required by Rev. St. § 999, and defendants do not appear in the supreme court, the case will be dismissed, as notice of a writ of error, given in open court at the same term the judgment is rendered, is not equivalent to such citation, as in the case of an appeal in open court.United States v. Phillips, 121 U. S. 254, 7 S. Ct. 874, 30 L. Ed. 914. Where an appeal is taken in open court during the term at which the judgment was rendered, notice or citation is not necessary. Brown v. McConnell, 124 U. S. 489, 8 S. Ct. 559, 31 L. Ed. 495. 398. Writ of error. See 2 Cent. Dig. App. & E. §§ 2103-2119. 399. Issuance. See 2 Cent. Dig. App. & E. §§ 2103, 2105, 2106. Under Prac. Act, § 69, which forbids the dismissal of an appeal on account of informality or insufficiency of the appeal bond if the appellant shall, within a time fixed by the court, file a good and sufficient bond, a motion A writ of error from the United States suto dismiss an appeal will be denied when it is made after the case is submitted for decision preme court to a state court may be directed to by the appellants, and no motion has been an inferior court, if the supreme court of the state has remitted the whole record, without made to set aside the order taking the case for decision. Judgment 55 N. E. 325, 182 Ill retaining a copy, to such inferior court, with 250. affirmed.-Farrell v. West Chicago Park directions to enter a final judgment in the case. Com'rs, 21 S. Ct. 609, 645, 181 U. S. 404, 45-Polleys v. Black River Imp. Co., 113 U. S. 81, 5 S. Ct. 369, 28 L. Ed. 938. L. Ed. 916, 924. 395. Effect of failure to give or de- 400. fects in security. See 2 Cent. Dig. App. & E. §§ 2058, 2064-2070, 2085, 2086; 3 Cent. Dig. App. & E. § 3127; 42 Cent. Dig. Refer. §§ 221, 224. a The omission of the lower court judge to take security at the time of signing the citation on appeal as required by Rev. St. § 1,000, is mere irregularity, which may be cured by the supreme court allowing appellant to file the proper bond under penalty of dismissing the appeal.-Brown v. McConnell, 124 U. S. 489, 8 S. Ct. 559, 31 L. Ed. 495; Stewart v. Masterson, 124 U. S. 493, 8 S. Ct. 561, 31 L. Ed. 507. (D) WRIT OF ERROR, CITATION, OR NOTICE. Bankruptcy proceedings, see Bankruptcy, 461. Form and requisites. See 2 Cent. Dig. App. & E. §§ 2103, 2107-2112. It seems that a writ of error to a state court will not be dismissed because it is signed by the clerk of that court only.-Miller v. State of Texas, 153 U. S. 535, 14 S. Ct. 874, 38 L. Ed. $12. It is error to sue out a writ of error in the firm name or style of a partnership, without stating the names of the persons composing the firm.-Godbe v. Tootle, 154 U. S. 576, 14 S. Ct. 1167, 19 L. Ed. 831. Writs of error from the supreme court must bear the teste of the chief justice.-Germain v. Mason, 154 U. S. 587, 14 S. Ct. 1170, 20 L. Ed. 689. When there is no application to amend, the omission of the writ of error to state with certainty the return day is ground for dismissal. -Sea v. Connecticut Mut. Life Ins. Co., 154、 396. Necessity of appellate process U. S. 659, 14 S. Ct. 1191, 25 L. Ed. 772. or of notice. See 2 Cent. Dig. App. & E. §§ 2099, 2102, 2104, 2150; 42 Cent. Dig. Refer. 215. Except in cases of appeals allowed in open court during the term at which the decree appealed from was rendered, a citation returnable at the same term with the appeal or writ of error is necessary to perfect jurisdiction of the appeal or the writ, unless it has been waived. -Hewitt v. Filbert, 116 U. S. 142, 6 S. Ct. 319, 29 L. Ed. 581; Jacobs v. George, 150 U. S. 415, 14 S. Ct. 159, 37 L. Ed. 1127. Where the necessary security is not taken until after the term at which the decree was rendered, a citation is required.-Brown v. McConnell, 124 U. S. 489, 8 S. Ct. 559, 31 L. Ed. 495. See 2 Cent. Dig. App. & E. § 2114. The failure of a clerk of the circuit court to indorse a writ of error as filed cannot defeat the transfer of the case, when the judge has done all that is necessary for him to do, and the party has done all that is required of him. Judgment 76 F. 617, 22 C. C. A. 425, reversed.-Mutual Life Ins. Co. of New York v. Phinney, 20 S. Ct. 906, 178 U. S. 327, 44 L. Ed. 1088. See 2 Cent. Dig. App. & E. §§ 2115-2119. 397. Process or notice on appeal in preme court to permit amendments in See 2 Cent. Dig. App. & E. § 2101. Where an appeal is allowed by the court during the term at which the decree was ren error which do not prejudice the defendant in error, when the defect can be remedied by reference to the record, it is proper, when a writ is not made returnable to any particular day, to permit the insertion of the proper return day. |