§ 1924.

§ 1925.

CHAPTER 58.

MODE OF TAKING APPEAL, ASSIGNMENTS AND EXCEPTIONS.

§ 1922. Procedure on application for certiorari to circuit court of appeals. Mode of procuring review in circuit court of appeals.

§ 1923.

Allowance of appeals direct from circuit and district courts to
Supreme Court, citation, bond and supersedeas.
Writ of error may be issued by lower court-form.

§ 1926.

§ 1927.

Form of citation on writ of error from circuit to district courts. -on writ of error from supreme court.

§ 1928.

Amendment of writ of error.

§ 1929

Appeals subject to same rules as writs of error.

§ 1930.

$ 1931.

Assignment of errors on appeal direct to supreme court.
-on appeal to circuit court of appeals.

§ 1936.

§ 1937.

Writ of error in capital cases as of right without security.
Order allowing appeal from court of claims.

§ 1939 -parties to request findings.

§ 1940. Statement or findings by Territorial courts.

§ 1922. Procedure on application for certiorari to circuit court

of appeals.

In applying for a writ of certiorari under the act of March 3, 1891, the practice requires the petition for the writ to be docketed, and, in order to do so, the petitioner must furnish an original petition, a certified copy of the transcript of record, including therein all the proceedings in the circuit court of appeals. $25 as deposit on account of costs, and an order for appearance for the petitioning party, signed by a member of the bar of the Supreme Court. Petitions are docketed in the Supreme Court under the title of -, Respondent.

Petitioner, vs.

Some Monday should be fixed upon for the submission of the petition, that being motion day, and sufficient notice given counsel for respondents of the date selected, to enable them to file briefs

in opposition, if they desire to do so, and proof of service of such notice filed in the Supreme Court.

Petitions must be called up and submitted (oral argument is not permitted) in open court by counsel, and before the submission, 25 printed copies of the petition and of such briefs as are filed in support of same, must be furnished. In addition to the certified copy of the transcript of the record, required bý Rule 37,20 a sufficient number of printed copies thereof (not less than ten) must be furnished to supply the Supreme Court. Should it be necessary to reprint the record for use on the hearing of the petition, 50 copies should be printed, under the supervision of the Supreme Court clerk, in order that there may a sufficient number for use on the final hearing, should the petition be granted.

(Instructions issued by James Hall McKenney, clerk of the Supreme Court.)

§ 1923. Mode of procuring review in circuit court of appeals. Under section eleven of the act establishing the circuit court of appeals the existing method and system of review are adopted for appeals to that court. The practitioner must therefore apply the statutory provisions found in this and other chapters and originally framed for appeals to the circuit and Supreme Courts.[a]-[b]

Author's section.

[a] Instructions and directions.

The practitioner will find very helpful a set of instructions prepared by the clerk of the circuit court of appeals for the fourth circuit and approved by the court. They are in part as follows:

All appeals, whether by writ of error or appeal, should be taken in the following manner: (1) Petition in writing for the appeal, or writ of error addressed to the court below, or the judge thereof in vacation. (2) The petition must be accompanied with an assignment of errors and a prayer for reversal. (3) Appeal or writ of error bond, approval thereof, and the signing of the citation by the judge allowing the appeal or writ. (4) Order of the judge in writing allowing the writ of error or appeal. (5) Issuing the writ of error by the clerk of the circuit court or of this court. (6) In case it is desired to have the writ of error issued by the clerk of this court, a certified copy of the writs of error and citations are no longer made returnable to the term day of the appellate court, but are made returnable not exceeding thirty days6 from the day of signing the

20 See post, § 1962. 1 Ante, § 1880.

Issued July 1, 1896, by Henry T. Maloney, clerk. See 90 Fed. LXXXV.

660 days on appeal to the Supreme Court from the far western States and Territories. See post, § 1951.

citation should bear the same return day. But in cases of appeal (in adterm time; and the record must be filed in the clerk's office of this court before the return day, unless the time be enlarged as provided in section 1 of rule 16.7 In that case the order of enlargement must be filed with the clerk of this court. Rule 11, entitled 'assignments of errors' requires the plaintiff in error, or appellant, to file with the court below with his petition for the writ of error or appeal, an assignment of errors, etc.8 This practically abolishes the necessity of pursuing the old method of praying appeals in 'open court;' and all appeals and writs of error should we prayed for by petition in writing addressed to the court below, or to the judge in vacation, who allows the writ or the appeal, by an order in writing, approves the appeal or supersedeas bond, and signs the citation. In cases brought up by a writ of error, from either the circuit or district courts, the clerk of the circuit court or the clerk of this court issues the writ of error, which writ fixes the return day of the writ to this court, and the citation should bear the same return day. But in cases of appeal (in admiralty or equity) the citation alone fixes the return day. Petition and order allowing the writ, under the seal of the court, with a fee of $5 for issuing it, must be transmitted to the clerk of this court, whereupon the writ will be issued and forwarded to the clerk of the court below. All of the above papers and proceedings should be filed with the clerk of the lower court, and incorporated into and certified up in the record by him to this court, except the writ of error and the citation, the originals of which, after having been duly served, must be attached to and bound in the record at their respective places.

Other portions of these very excellent instructions are given elsewhere.10

[b] Special rules in second, fifth, and eighth circuits.

In the second circuit the following rule has been adopted as to the taking of an appeal or writ of error:

"An appeal or writ of error from a circuit court or a district court to this court in the cases provided for in sections 6 and 7 of the act entitled 'An act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States and for other purposes,' approved March 3, 1891, and acts to amend said act approved February 18, 1895 and January 20, 1897, may be allowed in term time or vacation by the circuit justice or by any circuit judge within the circuit, or by any district judge within his district, and the proper security be taken and the citation be signed by him, and he may also grant a supersedeas and stay of execution or of proceedings, pending such writ of error or appeal."11

In the fifth and eighth circuits there is a similar rule applicable however only to writ of error in criminal cases.12

7See post, § 1952.

8 Post, §§ 1930, 1931.

10 Post, § 1972.

11See Rule 36, cl. 1, 2d circuit in appendix.

12See appendix I. E.

§ 1924. Allowance of appeals direct from circuit and district courts to Supreme Court,-citation, bond and supersedeas.

An appeal[a] or a writ of error from a circuit court or a district court direct to this court, in the cases provided for in sections 5 and 6 of the act entitled "An act to establish circuit courts of appeals, and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes," approved March 3, 1901,15 may be allowed, in term-time or in vacation, by any justice of this court, or by any circuit judge within his circuit, or by any district judge within his district,[b]-[c] and the proper security be taken and the citations signed by him, and he may also grant a supersedeas and stay of execution or of proceedings, pending such writ of error or appeal.

36th Supreme Court rule, promulgated May 11, 1891.16

[a] Allowance of appeal-cross appeals.

A rule similar to the above has been adopted by the circuit court of appeals for the second, fifth and eighth circuits.17

The appeal may be allowed in open court before the end of the term in which the decree is rendered, or it may be prayed after the court has risen.18 In the latter case the appellant must proceed in the same manner as is directed in the suing out of a writ of error; that is, an allowance may be made by the judge and a citation issued returnable with the record.19 When allowed in open court it is presumed to be allowed by duly authorized judge, and the record cannot be changed to show otherwise by affidavit in the appellate court.20 Some action amounting in law to an allowance is necessary, as without it neither the supreme court, nor the circuit court of appeals,5 can acquire jurisdiction, although it is not necessary that there be a formal order of allowance.6 The power to allow an appeal is not confined to the justice assigned to the particular circuit in which the court that rendered the decree is held. Whoever can sign a citation may allow an appeal,8 and this may be done by a judge of the circuit court or a justice of the supreme court. 9 If prayed for, the appeal must be allowed

being a matter of right,10 and mandamus will be granted to compel a judge to allow an appeal in a proper case.11 When the trial court makes an order allowing an appeal, through a mistake, such order may and should be vacated.12

Cross appeals are taken and prosecuted in the same manner as original appeals.16 Hence a cross appeal is not "taken" until brought to the attention of the court whose decree it questions.17 It may be allowed by the lower court, and the citation signed and the bond approved if done within the statutory two years, although the record may have been removed to the appellate court.18

[b] Writ of error-form and contents.

A writ of error issues in the name of the President of the United States and is tested of the date of its issue, in the name of the chief justice of the United States or when that office is vacant in the name of the associate justice next in precedence.2 It must be under the seal of the court which issues it and bear the signature of the clerk.3 It was early decided that a writ of error to remove a cause to the supreme court could issue only from the office of the clerk of that court. Under a provision of the Revised Statutes, however, the issuance of the writ by clerks of the circuit court is authorized, whether returnable to the supreme court or the circuit court of appeals.7 The writ should set out the names of all the parties,s and hence it is insufficient to describe the plaintiffs in error, as heirs of a certain person, or to describe them as a certain firm when the appeal is taken in the name of the individual members.10 Likewise it is insufficient to name one of the plaintiffs or defendants describing the rest on the same side as "the others."11 Such defects may however be amended.12

10 The Douro, 3 Wall. 564, 18 L. ed. 168.

11 Ex parte South, etc. R. Co. 95 U. S. 221, 24 L. ed. 355; Ex parte Parker, 120 U. S. 737, 30 L. ed. 818, 7 Sup. Ct. Rep. 767; see Lewis v. Baltimore, etc. R. Co. 62 Fed. 218; 10 C. C. A. 446.

12 Farmers, etc. Co. v. McClure, 78 Fed. 211, 24 C. C. A. 66.

16 Farrar v. Churchill, 135 U. S. 610, 34 L. ed. 246, 10 Sup. Ct. Rep. 771; The Osborn, 105 U. S. 450, 26 L. ed. 1066; Hilton v. Dickinson, 108 U. S. 169, 27 L. ed. 689, 2 Sup. Ct. Rep. 424.

17Idem; see Credit Co. v. Arkansas, Ry. Co. 128 U. S. 261, 32 L. ed. 450, 9 Sup. Ct. Rep. 107.

18 Farrar v. Churchill, 135 U. S. 610, 34 L. ed. 246, 10 Sup. Ct. Rep. 771.

1Atherton v. Fowler, 91 U S. 143, 23 L. ed. 265; see ante, § 836.

2Germain v. Mason, 154 U. S. 587, 20 L. ed. 689, 14 Sup. Ct. Rep. 1170; see ante, § 836, et seq.

3 Miller v. Texas, 153 U. S. 535, 28 L. ed. 812, 14 Sup. Ct. Rep. 874. 4 West v. Barnes, 2 Dall. 401, 1 L. ed. 433.

5 See post, § 1925.

6 Mussina v. Cavazos, 6 Wall. 357, 18 L. ed. 810.

7Northern Pac. R. Co. v. Amato, 49 Fed. 881, 1 C. C. A. 468.

8 Smyth v. Strader, 12 How. 327, 13 L. ed. 1008; Davenport v. Fletcher, 16 How. 142, 14 L. ed. 879.

9 Wilson v. Life, etc. Ins. Co. 12 Pet. 140, 9 L. ed. 1032.

10 Moore v. Simonds, 100 U. S. 145, 25 L. ed. 590.

11Deneale v. Archer, 8 Pet. 526, 8 L. ed. 1033; Miller v. McKenzie, 10 Wall. 582, 19 L. ed. 1043. 12 See post, § 1928.