made of the expense of printing the record, and 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 the amount so estimated is not promptly paid over to the clerk, and for want of such payment the record shall not have been printed when a case is reached for argument, the case shall be dismissed. 2. Upon payment of the amount estimated by the clerk, thirty copies of the record shall be printed, under his supervision, for the use of the court and of counsel. "3. In cases of appellate jurisdiction, the original transcript on file shall be taken by the clerk to the printer. But the clerk shall cause copies to be made for the printer of such original papers sent up under Rule 14, section 4,8 as are necessary to be printed; and the whole of the record in cases of original jurisdiction. "4. The clerk shall supervise the printing and see that the printed copy is properly indexed. He shall distribute the printed copies to the judges and the reporter, and one or more printed copies to the counsel of the respective parties. "5. If the expense 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 expense 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 copies to the parties or their counsel."10 [u]-Statement of errors relied on portions of record to be printed. "The plaintiff in error or appellant may, upon filing the record in this court, file with the clerk a statement of the errors on which he intends to rely, and 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 ten days thereafter, 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 a hearing on the parts designated by the plaintiff in error or appellant. If parts of the record shall be so designated by one or both of the parties, or if such parts be distinctly designated by stipulation of counsel for the respective parties, the clerk shall print those parts only; and the court will consider nothing but those parts of the record, and the errors so stated. 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 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 as the court shall think proper. All statements and stipulations filed hereunder shall distinctly and accurately refer to the pages of the original certified record, as well as the documents to be printed or omitted."12 [v] Copies of patent drawings in record. "At the time of filing the record and docketing the cause, counsel for the plaintiff in error or appellant in patent cases may furnish the clerk with copies of patent office drawings and specifications to be used as inserts, and the same if in proper form and of convenient size, shall be used in printing the record.14 § 1995. Translations, how supplied. Whenever any record, transmitted to this court upon a writ of error or appeal shall contain any document, paper, testimony, or other proceedings in a foreign language, and the record does not also contain a translation of such document, paper, testimony or other proceeding, made under the authority of the inferior court, or admitted to be correct, the record shall not be printed, but the case shall be reported to this court by the clerk, and the court will thereupon remand it to the inferior court in order that a translation may be there supplied and inserted in the record. Supreme Court rule 11, as revised Dec. term 1858, and rule 15 of circuit court of appeals, in force in all circuits. § 1996. Printing new pleadings and testimony in admiralty appeals in second and ninth circuits. If new pleadings are filed or testimony taken in this court, the same shall also be printed and furnished by the clerk as in the 23rd general rule provided. Admiralty rule X circuit court of appeals for second circuit, promulgated May 20, 1892 and Rule 10, for the ninth circuit, adopted May, 21, 1900. 1997. Certiorari for diminution of record. No certiorari for diminution of the record will be hereafter awarded in any case, unless a motion therefor shall be made in writing, and the facts on which the same is founded shall, if not admitted by the other party, be verified by affidavit. And all motions for such certiorari must be made at the first term of the entry 12 Par. 7, C. C. A. rule 23, 9th circuit. 14 Par. 8th C. C. A. rule 23. 9th circuit, as amended Mar. 2, 1900. of the case; otherwise the same will not be granted, unless upon special cause shown to the court, accounting satisfactorily for the delay,[a]-[b] Supreme Court rule 14, and circuit court of appeals rule 18, in force in all circuits. [a] In general. Certiorari is used an an auxiliary process to bring up a full record of a case already before the appellate court1 and hence it is the proper remedy for a deficient or incomplete transcript.2 Thus it may be used where the judgment of the lower court has been omitted from the record,3 or upon the omission of the citation, or material portions of the evidence, or other necessary parts of the record. It cannot, however, be used to correct errors which exist in the record as it stands in the lower court. Nor can it be used to show additional facts not in the findings, nor to correct a transcript from which the clerk's certificate is omitted.8 It has been dispensed with where a necessary part of the record, which was omitted, was duly certified up to the appellate court, a direct order of the court making the omitted portion part of the record, being sufficient.9 [b] The motion. Since the record as filed is presumptively correct the court, under the above rule, upon an ex parte affidavit, will not cause the record to be amended by inserting a paper of which neither the master nor the attorney for the appellee has any recollection. Certiorari for diminution of the record must be applied for at the first term of the court or cause shown for the delay.11 It has been allowed, although the motion therefor was made after the term, upon showing that the counsel resided in California and were ignorant of the rule.12 An early case holds that the return to the writ may be made by the clerk of the lower court instead of the judge thereof.13 1 American Construction Co. v. Jacksonville etc. Ry. 148 U. S. 380, 37 L. ed. 486, 13 Sup. Ct. Rep. 758. 2 Fleckinger v. Bank, 145 Fed. 162, (C. C. A.) The Rio Grande, 19 Wall. 188, 22 L. ed. 60; United States v. Gomez, 1 Wall. 702, 17 L. ed. 677; Hudgins v. Kemp, 18 How. 534, 15 L. ed. 511; Mandeville v. Burt, 8 Pet. 256, 8 L. ed. 936. 3Sweeney v. Lomme, 22 Wall. 215, 22 L. ed. 727. L. ed. 759, 8 Sup. Ct. Rep. 834; Good- 7U. S. v. Adams, 9 Wall. 661, 19 L. ed. 808. 8 Hodges v. Vaughan, 19 Wall. 12, 22 L. ed. 46. 9 Burnham v. Railroad Co. 87 Fed. 168, 30 C. C. A. 594. 11Chappell v. United States, 160 U. S. 505, 40 L. ed. 510, 16 Sup. Ct. 4 Field v. Milton, 3 Cranch, 514, 2 Rep. 397. L. ed. 516. 5 Merrill v. Floyd, 50 Fed. 849, 2 C. C. A. 58; Blanks v. Klein, 1 C. C. A. 254, 49 Fed. 1. Hoskin v. Fisher, 125 U. S. 224, 31 12Stearns v. United States, 4 Wall. 1, 18 L. ed. 451. 13 Stewart v. Ingle, 9 Wheat. 526, 6 L. ed. 151. § 1998. One record sufficient where both parties appeal. Where appeal is duly taken by both parties from the judgment or decree of a circuit or district court to the Supreme Court, a transcript of the record filed in the Supreme Court by either appellant may be used on both appeals, and both shall be heard thereon in the same manner as if records had been filed by the appellants in both cases. R. S. § 1013, U. S. Comp. Stat. 1901, p. 716. The above section was carried into the revised statutes from an act of 1861.14 Where both parties appeal in an admiralty cause both may assign error.15 But, if only one party appeals, the other cannot be heard except in support of the decree appealed from. 16 R. S. § 1013 must now be deemed to apply also to review in the circuit court of appeals.17 14 Act Aug. 6, 1861, C. 61, § 1, 12 Stat. 319. 15The Maria Martin, 12 Wall. 40, 20 L. ed. 251. 16The Maria Martin, 12 Wall. 41, 20 L. ed. 251; The Mabey, 13 Wall. 741, 20 L. ed. 474. 17 Ante, § 1880. CHAPTER 60. BOND AND SUPERSEDEAS. § 2009. Bond in error and on appeal. § 2010. No Bond required of United States. § 2011. § 2012. Security for appeals from revenue decisions of Board of Appraisers. Supersedeas. § 2013. § 2014. § 2015. -on appeal or error direct from circuit and district courts. § 2016. Writ of error as supersedeas in capital cases. § 2017. § 2018. 2019. -execution postponed until mandate returned-subsequent pro ceedings. Effect of writ of error to State court. No suspension of work of commission of Five Civilized Tribes pending appeal to Supreme Court. § 2020. Stay on appeal from interlocutory injunction order-additional Appeal bond in admiralty cases in second and ninth circuits. § 2026. -writ of inhibition to stay proceedings below. § 2027. Commerce Commission's order not vacated on appeal. § 2009. Bond in error and on appeal. Every justice or judge signing a citation on any writ of error shall, except in cases brought up by the United States or by direction of any department of the government, take good and sufficient security[a]-[el that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid,[a] R. S. 1000, U. S. Comp. Stat. 1901, p. 712. |