is dated as of a prior day.23 A decision containing directions for a decree is not considered as a decree.24 When the order of judgment or decree is amended, it seems that the time begins to run anew from the date of the amendment.25 If a petition for a rehearing is duly filed or a motion for a new trial duly made, or a motion to set aside the judgment made during the term, the time does not begin to run until the petition or motion has been denied; 26 and an appeal allowed before the petition or motion is made, but not perfected till afterwards, is considered as not pending till it is perfected." The appellate court, if the record does not show when the petition for a rehearing, which has been denied, was filed, will presume that it was filed in time.28 The day on which the order, judgment, or decree was entered is excluded from the computation of the time.29 It has been held that when the last day of the limited time falls on a Sunday, the writ or appeal cannot be taken on a subsequent day.30

The time to appeal or to sue out a writ of error cannot be extended by the court by an order permitting it to be filed nunc pro tunc or otherwise; 31 and it has been held that respondents or defendants in error cannot waive the objection that the time has expired." An appeal cannot be taken from a decree or order before the decision is pronounced.33

rily exist, nor the time begin to run 111 U. S. 488; Brockett v. Brockett, until the entry of a final decree dis- . 2 How. 238; Memphis v. Brown, 94 posing of the whole matter in litiga- U. S. 715; Aspen M. S. S. Co. v. Billings, tion. Winters v. Ethell, 132 U. S. 207. 150 U. S. 31; Alexander v. U. S., 57 Cross-appeals may be taken and Fed. R. 828. For a case where a rehearallowed below after an appeal has ing was allowed in order to allow an been taken and the cause removed appeal after the time had expired, to the appellate court, provided the see In re Wright, 96 Fed. R. 820. original time to appeal has not expired. Farrar v. Churchill, 135 U. S. 609.

23 Rubber Co. v. Goodyear, 6 Wall. 153. But see Credit Co. v. Arkansas Cent. Ry. Co. 128 U. S. 258.

24 U. S. v. Gomez, 1 Wall. 690. Cf. Marks v. No. Pac. R. Co. (C. C. A.), 76 Fed. R. 941. But see Silsby v. Foote, 20 How. 290; Fairbanks v. Amoskeag Nat. Bank, 32 Fed. R. 572.

25 U. S. v. Gomez, 1 Wall. 690. But see U. S. v. Grant, 110 U. S. 225.

26 Texas & Pac. Ry. Co. v. Murphy,

27 Vorhees v. John T. Noye Co., 151 U. S. 135.

28 Texas & Pac. Ry. Co. v. Murphy, 111 U. S. 488.

29 Smith v. Gale, 137 U. S. 577.

30 Johnson v. Meyers (C. C. A.), 54 Fed. R. 417.

31 Credit Co. v. Arkansas Cent. Ry. Co., 128 U. S. 258; Judson v. Courier Co., 25 Fed. R. 705. But see In re Wright, 96 Fed. R. 820.

32 Stevens v. Clark (C. C. A.), 62 Fed. R. 321.

33 Brown v. Evans, 18 Fed. R. 56.

35

The writ of error is not brought till it is filed in the office of the clerk of the court to which it is addressed.34 So, when it is tested, allowed and issued within the time, but not filed till afterwards, it is brought too late. An appeal is taken when it is allowed, and its allowance is brought to the attention of the court below either by filing in the clerk's office the petition and the allowance of the appeal; or, where there is no formal allowance thereof, when the bond or appeal is approved and filed, either with or without the citation.36 The fact that the bond is filed " or the citation not issued till after the statutory time does not cut off the right to appeal if the petition and its allowance were duly filed. It has been held that, where the record or the bond shows that a formal appeal was allowed, the filing of the bond with its approval within the time is insufficient; 9 but that where there was no formal appeal the filing of the bond with its approval is sufficient."

37

38

507. Writs of error.- A writ of error issues from the clerk's office of the appellate court, to which it is returned. A writ of error to review the judgment of a Circuit Court may issue from the clerk's office of that Circuit Court, returnable to the Supreme Court or Circuit Court of Appeals, as the case may be. The writ issues in the name of the President of the United States,2 is tested of the date of issue in the name of the Chief Justice of the United States, or, when that office is

As to the right of appeal after the announcement of a decision, but before the entry of an order or decree thereupon, see Fairbanks v. Amoskeag Nat. Bank, 32 Fed. R. 572; Credit Co. v. Arkansas C. Ry. Co., 128 U. S. 258; Ex parte Whitton, 134 U. S. 881.

34 Brooks v. Norris, 11 How. 204; Scarborough v. Pargoud, 108 U. S. 567; U. S. v. Baxter (C. C. A.), 51 Fed. R. 624. The failure of the clerk to mark it filed makes no difference when it is left in his office. Mutual L. Ins. Co. v. Phinney, 178 U. S. 327, 336.

35 Brooks v. Norris, 11 How. 204; Mussina v. Cavazos, 6 Wall. 355, 360; Scarborough v. Pargoud, 108 U. S. 567; U. S. v. Baxter, 51 Fed. R. 624. 36 The Dos Hermanos, 10 Wheat.306;

3

Brandies v. Cochrane, 105 U. S. 262;
Credit Co., Ld., v. Arkansas C. Ry.
Co., 128 U. S. 258, 261.

37 The Dos Hermanos, 10 Wheat. 306.

38 Evans v. State Bank, 134 U. S. 330.

39 Norcross v. Nave & McCord Mfg. Co. (C. C. A.), 101 Fed. R. 796. See Credit Co. v. Arkansas Cent. R. Co., 128 U. S. 258.

40 Brandies v. Cochrane, 105 U. S. 262.

$507. U. S. R. S., § 1004; 26 St. at L., ch. 517, §§ 2, 11, pp. 826, 829; No. Pac. R. Co. v. Amato (C. C. A.), 49 Fed. R. 881.

2S. C. Rule. 5.

3 U. S. R. S., § 912; Atherton v. Fowler, 91 U. S. 143.

vacant, in the name of the associate justice next in precedence, that is, with the oldest commission, and bears the

seal of the court whose clerk issues it, and is signed by such clerk. The writ is directed to the court whose proceedings it is intended to review, and directs such court to send up under its seal to the appellate court the record and process for inspection. The return-day of a writ of error or appeal must be not more than thirty days from the day of signing the citation, whether the return-day fall in vacation or in term time;7 except in case of writs of error or appeals from the Supreme Court to review the decisions of the Circuit and District Courts of California, Oregon, Nevada, Washington, New Mexico, Utah, Arizona, Montana, Wyoming, North Dakota, South Dakota, Alaska, and Idaho, when the return-day must be not more than sixty days from the day of signing the citation. The writ is a writ of the court of review, although issued from the clerk's office of the Circuit Court.10 A writ of error must set out the names of all the parties, plaintiff and defendant in error."1

8

It is the better practice to include in the writ of error a description of the position of the parties as plaintiffs and defend

4U. S. R. S., § 911; Germain v. Mason, 154 U. S. 587; infra, § 24.

5 U. S. R. S., § 674.

6 U. S. R. S., §§ 911, 1004; Miller v. Texas, 153 U. S. 535.

7S. C. Rule 8; C. C. A. Rule 14. As to the place of the return in the Ninth Circuit, see McFadden V. Mountain V. & M. M. Co. (C. C. A.), 97 Fed. R. 670. A writ of error will not be dismissed because no return-day is named when it is by its terms returnable within thirty days, although the order allowing it made it returnable in sixty days. Texas & P. R. Co. v. Bloom (C. C. A.), 60 Fed. R. 979. The writ will not be dismissed because returned a few days after the return-day. Altenberg v. Grant (C. C. A.), 83 Fed. R. 980. See infra, § 512.

8 S. C. Rule 9.

9 S. C. Rule 8.

10 Mussina v. Cavazos, 6 Wall. 355. 11 Smyth v. Strader, 12 How. 327; Davenport v. Fletcher, 16 How. 142. A writ is insufficient which names but one of the plaintiffs or defendants in error, and describes the rest on the same side as "and others," De Neale v. Archer, 8 Pet. 526; Miller v. McKenzie, 10 Wall. 582; or which describes parties by their firm name instead of their individual names, The Protector, 11 Wall. 82; Moore v. Simonds, 100 U. S. 145; Godbe v. Tootle, 154 U. S. 576; unless the record shows the partners' names, Estis v. Trabue, 128 U. S. 225; or as the heirs of Nicholas Wilson," Wilson v. Life & Fire Ins. Co., 12 Pet. 140; or as "the ship Protector and owners," The Protector, 11 Wall. 82. An appeal by “William L. Hemingway, Treasurer of the State of Mississippi, and Sylvester Gwinn,

ants below, as well as of their positions in the court of review; but if the latter statement is made, the omission of the former will not avoid the writ.12 Where the writ of error contains the names of all the parties who appear on the record, the court of review cannot presume that there are other parties, and for that reason dismiss the writ.13 Where the writ of error omitted parties named in the citation, the court dismissed the writ.14

A mistake in the date will not vitiate a writ of error which is duly issued and served.15 A writ of error to a State court need not contain a recital that it is directed to the final judgment of such court, nor that the court is the highest court of law or equity in the State.16

The appellate court may, at any time, in its discretion and with or without terms, allow an amendment of a writ of error, when there is a mistake in the teste, or a seal is wanting, or the writ is made returnable on a wrong day, or when the statement of the title or the parties is defective, if such defect can be remedied by reference to the accompanying record, and in all other particulars of form, provided the defect has not prejudiced, and the amendment will not injure, the defendant in error." A high authority-Judge Curtis - has said of the statute authorizing such amendments: "It is difficult to see, in reading it, what defect cannot now be amended in the discretion of the court." 18 It is the practice to file a petition for the

Auditor of said State, and ex officio the Levee Board of Mississippi District Number One," was held sufficient to bring up for review a decree against the Levee Board, although a statute had been passed, entitled "An act to abolish the Levee Board of District Number One, and to pay the debts of said Board," which abolished the offices of the members of such board, and substituted the officers who took the appeal in their place to settle up the unfinished business and pay the debts of the board. Hemingway v. Stansell, 106 U. S. 399.

15 O'Dowd v. Russell, 14 Wall. 402. 16 Buell v. Van Ness, 8 Wheat. 312. 17 U. S. R. S., § 1005; Cotter v. Ala. G. S. R. Co. (C. C. A.), 61 Fed. R. 747.

18 Curtis, Jurisdiction of U. S. Courts, 87. A writ of error which does not name any return-day may be amended by the insertion of a return-day. Evans v. Brown, 109 U. S. 180. But where there was no application for an amendment the writ was dismissed. Lea v. Conn. Mut. L. L Co., 154 U. S. 659. Where the writ was in the name of the President of the United States, but bore the teste

12 Mussina v. Cavazos, 6 Wall. 355, of the Chief Justice of the State 361.

13 Gumbel v. Pitkin, 113 U. S. 545. 14 Kail v. Wetmore, 6 Wall. 451.

court, with his signature and that of the clerk of such court, and the seal of such court, an amendment of the

writ, and to have it allowed by a judge of the court to which it is addressed, or a judge of the court of review.19 The petition should be accompanied with an assignment of errors, which should set out separately and particularly each error asserted and intended to be urged. No writ of error to a Circuit or District Court is allowed till such an assignment of errors is filed. When the error alleged is to the admission or to the rejection of evidence, the assignment of errors should quote the full substance of the evidence. When the error alleged is