to the charge of the court, the assignment of errors should set out the part referred to in the words of the charge, whether it be in instructions given or instructions refused. When the error alleged is to the ruling upon the report of a master, the specification should state the exception to the report and action of the court upon it.20 There should be annexed to and returned with every writ of error, an authenticated transcript of the record, an assignment of errors, and a prayer for reversal, with a citation to the adverse party." "When there is no assignment of errors, as required by section 997 of the Revised Statutes, counsel will not be heard except at the request of the court, and errors not specified according to this rule will 20 U. S. R. S., § 997; S. C. Rule 35; C. C. A. Rule 14, 24. It has been held that assignments of errors filed after the writ of error or appeal was allowed will be disregarded. U. S. v. Goodrich, 54 Fed. R. 21; Union Pac. Ry. Co. v. Colorado Eastern Ry. Co. (C. C. A.), 54 Fed. R. 22. Even when filed within additional time granted by the court when the appeal was allowed. Mutual Life Ins. Co. v. Conoley (C. C. A.), 63 Fed. R. 180. Where an assignment of error included objections to several distinct instructions of the court it was disregarded, although separate exceptions were taken to each instruction. Atchison, T. & S. F. R. Co. v. Mulligan (C. C. A.), 67 Fed. R. 569. An assignment of error to a charge will not be considered unless duly taken at the trial. Tinsman v. F. R. Patch Mfg. Co. (C. C. A.), 101 Fed. R. 373. Upon appeal from an order granting an interlocutory injunction it was held sufficient simply to state that the court erred in granting the injunction. Doan v. Am. Book Co. (C. C. A.), 105 Fed. R. 772. It was held that an assignment of error in the language of the finding claimed to be erroneous was sufficiently specific. Ibid. Where an injunction was modified it was held that the assignment of errors must include the order as modified. Williams v. Mitchell (C. C. A.), 106 Fed. R. 168. As to the form of the assignments of error, see Chapin v. Fye, 179 U. S. 127; Columbus Const. Co. v. Crane Co. (C. C. A.), 101 Fed. R. 55; Farnsworth v. Nevada Co. (C. C. A.), 102 Fed. R. 578; No. Chicago St. Ry. Co. v. Burnham (C. C. A.), 102 Fed. R. 669; Burt v. C. Gotzian & Co. (C. C. A.), 102 Fed. R. 937; Deering Harvester Co. v. Kelly (C. C. A.), 103 Fed. R. 261; Adams ▼. Shirk (C. C. A.), 104 Fed. R. 54; Hale v. Tyler, 104 Fed. R. 757; Cass County v. Gibson (C. C. A.), 107 Fed. R. 363; Hutchinson Cooperage Co. v. Snider (C. C. A.), 107 Fed. R. 633; infra, § 514. As to the practice upon appeals from the taxation of costs, see Campbell Pr. P. & Mfg. Co. v. Duplex Pr. P. Co. (C. C. A.), 101 Fed. R. 282. 21 U. S. R. S., § 997. See infra, § 511, 514. A prayer that the writ may issue "for the correction of errors so complained of " is sufficient. Springfield S. D. & Tr. Co. v. Attica (C. C. A.), 85 Fed. R. 387. The failure to attach the writ of error to the transcript is not a fatal defect, but the attachment may be made in the court of review. Cotter v. Ala. G. S. R. Co. (C. C. A.), 61 Fed. R. 747. be disregarded, but the court, at its option, may notice a plain error not assigned." 22 24 A writ of error is served by lodging a copy with the clerk of the court to which it is directed.23 It must be served before its return-day. A citation should be addressed to the defendants in error,25 and signed by a judge of the court to which the writ is addressed, or any justice or judge of the appellate court,26 and must be served upon them before the return-day; but, when the writ has been duly issued and returned, the appellate court may allow an alias citation to be issued and served subsequently upon some of the defendants in error.28 Service by mail is insufficient unless the objection is waived.29 Service of the citation may be made upon the attorney of the defendants in error in the suit below, even though he has been paid his fee and discharged from all further duty." Service made on the partner 32 or executrix of the attorney of record is insufficient.33 Service on one of two joint parties is sufficient, even if the other is dead. In a State where the common law as regards the relations of husband and wife was unchanged, service on 30 22 S. C. Rule 21; C. C. A. Rule 24; Clinton E. Warden Co. v. California F. S. Co. (C. C. A.), 102 Fed. R. 334. 23 Davidson v. Lanier, 4 Wall. 447. 24 Wood v. Lide, 4 Cranch, 180; Pickett v. Legerwood, 7 Pet. 144. A writ will not be dismissed because the citation was served less than thirty days before the return-day. Seagrist v. Crabtree, 127 U. S. 772. Cf. Mendenhall v. Hall, 134 U. S. 559. See Ex parte Parker, 120 U. S. 737. But see U. S. R. S., § 799; Tripp v. Santa Rosa St. R. Co., 144 U. S. 126. 25 Peale v. Phipps, 8 How. 256; Bigler v. Waller, 12 Wall. 142. 26 Sage v. Railroad Co., 96 U. S. 712; Richards v. Mackall, 113 U. S. 539. It may be signed by a different judge from the one who approved the bond. Farmers' L. & Tr. Co. v. Chicago & N. P. R. Co. (C. C. A.), 73 Fed. R. 314. The signature of the clerk is insufficient. Brown v. McConnell, 124 U. S. 489; Freeman v Clay (C. C. A.), 48 Fed. R. 849. 27 See S. C. Rule 8; U. S. R. S., SS 997, 999; National Bank v. Bank of Commerce, 99 U. S. 608. 28 Altenberg v. Grant (C. C. A.), 83 Fed. R. 980; Knickerbocker L. I. Co. v. Pendleton, 115 U. S. 339. 29 Tripp v. Santa Rosa St. Ry. Co., 144 U. S. 126. 30 Bacon v. Hart, 1 Black, 38; Bigler v. Waller, 12 Wall. 142. An amendment showing his relation to the defendant in error may be subsequently allowed. McClellan v. Pyeatt (C. C. A.), 49 Fed. R. 259. Where an attorney appeared on the record as representing several respondents, it was held that his admission as solicitor for some of them bound them all. Ibid. 31 U. S. v. Curry, 6 How. 106. 32 Railroad Co. v. Blair, 100 U. S. 661. 33 Bacon v. Hart, 1 Black, 38. 35 38 the husband of a woman who had married since the judgment was held sufficient. Upon a writ of error to a judgment in favor of the Treasurer of a State, the citation must be served on the Treasurer, not on the Governor and the Attorney-General of such State.36 Where the defendant in error has since the judgment moved into another State or district, it seems that an order for service upon him by publication, or by the marshal of the district where he is found, may be granted."7 The object of service of a citation is notice; and where sufficient notice has been given by a stipulation and motion, or by an order of the appellate court served upon the appellee, directing him to appear and argue the cause,39 a citation is unnecessary. A failure to serve the citation before the writ of error is returnable is a ground for dismissing the case." A general appearance in the Supreme Court for a term without moving to dismiss is a waiver of service of the citation," or of a defect in the names of the defendants in error or respondents +2 or in the return-day," but not a waiver of a motion to dismiss the case upon another ground which is not a mere informality, except the lapse of time." An indorsement by the counsel for the defendant in error on a bond given as security for the costs on the writ of error is a waiver of service of a citation." Notice in open court of a writ of error given at the term when the judgment is rendered is not equivalent to a citation.46 Under the old practice it was held that no mandamus would issue to compel the allowance of a writ of error by a Circuit or District Court.47 No mandamus will issue to compel a judge of a Circuit or District Court to sign a citation or approve security in error or on 35 Fairfax v. Fairfax, 5 Cranch, 19. 36 Poydras de La Laude v. Treas. of Louisiana, 17 How. 1. 37 Nations v. Johnson, 24 How. 195; Renaud v. Abbott, 116 U. S. 277. Service by mail is insufficient. Tripp v. Santa Rosa St. R. Co., 144 U. S. 126. 38 U. S. v. Gomez, 1 Wall. 690. 39 Dodge v. Knowles, 114 U. S. 430. 40 Hewitt v. Filbert, 116 U. S. 142; Radford v. Folsom, 123 U. S. 725. See infra, § 512. 42 lxxxii; Pierce v. Cox, 9 Wall. 786; 43 Shute v. Keyser, 149 U. S. 649. 45 Pierce v. Cox, 9 Wall. 786. 46 U. S. v. Phillips, 121 U. S. 254. As to appeals, see infra, § 508. 47 Ex parte Virginia Com'rs, 112 41 U. S. v. Armejo, 131 U. S. App. U. S. 177. appeal, until an application for such signature or approval has been made to the judges of the court of review.48 § 508. Appeals.- An appeal must be allowed by a judge who has power to sign a citation, namely, by a judge of the court appealed from or of the appellate court.1 An approval of a bond on appeal is equivalent to the allowance of an appeal. A bond is not essential to the validity of an appeal, although a bond must subsequently be filed. A mandamus will be granted to compel a judge to allow an appeal in a proper case. The allowance of an appeal is not conclusive, and does not even imply that the judge who authorizes the appeal has made up his own mind that the party is legally entitled to it." An order allowing an appeal has relation back to the date 48 Ibid. 4 § 508. Barrel v. Transp. Co., 3 Wall. 424; Pierce v. Cox, 9 Wall. 786; Sage v. Railroad Co., 96 U. S. 712; supra, § 507. It has been held that a district judge cannot allow an appeal to the Circuit Court of Appeals from the order of another district judge in another district of the same circuit. U. S. v. Moy Yee Tai (C. C. A.), 109 Fed. R. 1. It has been said that he cannot allow an appeal from a District or Circuit Court in another district. Ibid. Appeals from the Court of Private Land Claims may be allowed by any judge of that court. U. S. v. Pena, 175 U. S. 500. Appeals from the Court of Claims must be allowed by the court if in session; in vacation by the chief justice of that court. The limitation of time for granting such an appeal ceases to run from the time an application is made for its allowance. App. Ct. Cl., Rule 3. The Court of Claims has power to revoke an order allowing an appeal at the request of the appellant, while the record remains therein at the term when the order was granted. Ex parte Roberts, 15 Wall. 384. It has been said that a Circuit or District Court has no power after an appeal has been perfected and the transcript filed to set aside an allowance of an appeal. Keyser v. Farr, 105 U. S. 265; Rector v. Lipscomb, 141 U. S. 557. But a Circuit Court was allowed, at the term when it allowed an appeal to the Supreme Court, which had not been perfected, to set aside such allowance and grant an appeal to the Circuit Court of Appeals. Aspen Min. Co. v. Billings, 150 U. S. 31, 35. And a Circuit Court, when the allowance was made under a mistake of fact, revoked the same. Farmers' L. & Tr. Co. v. McClure (C. C. A.), 78 Fed. R. 211. An omission of the names of the appellees from the order of allowance is waived by naming them in the appeal bond. Richardson v. Green, 130 U. S. 104. 2 Railroad Co. v. Bradleys, 7 Wall. 575; Sage v. Railroad Co., 96 U. S. 712; Brandies v. Cochrane, 105 U. S. 262. Not, however, when the time to appeal has previously elapsed. Killian v. Clark, 111 U. S. 784. 3 Edmonson v. Bloomshire, 7 Wall. 306, 311. 4 U. S. v. Adams, 6 Wall. 101; U. S. v. Gomez, 3 Wall. 752; Ex parte Railroad Co., 95 U. S. 221. 5 Taney, C. J., in Callan v. May, 2 Black, 541, 543. Ordinarily a judge has no right to refuse to allow an of the application therefor, and is considered as made on that day. Where an appeal is allowed in open court, and perfected during the term at which the decree or judgment appealed from was rendered, no citation is necessary. Where the appeal is allowed at the term of the decree or judgment, but not perfected until after the term, a citation is necessary to bring in the parties; but if the appeal be docketed at the next ensuing term, or the record reaches the clerk's hands seasonably for that term, and legal excuse exist for lack of docketing, a citation may be issued by leave of the appellate court, although the time for taking the appeal has elapsed. Where the appeal is allowed at a term subsequent to that of the decree or judgment, a citation An appeal for which application is duly made. Pullman's P. C. Co. v. Central Transp. Co., 71 Fed. R. 809. It has been said that where there is some uncertainty as to the appealability of an order, as one denying an application for leave to intervene, it is the duty of the judge of the court of first instance to allow the appeal. U. S. v. Phillips (C. C. A.), 17 Fed. R. 824. But, upon a denial of an application for the writ of habeas corpus, when all the questions raised had been decided by the Supreme Court, an appeal was not allowed. In re Durrant, 84 Fed. R. 317. appeal by an importer from an order of a Circuit Court, on the review of the decision of the Board of General Appraisers, is only allowed when the judge who decided the question or the Circuit Court shall be of the opinion that the question involved is of sufficient importance to require a review of such decision by the appellate court, and consequently allows such appeal. An appeal on the part of the United States must be allowed, whenever the AttorneyGeneral applies for it within thirty days after the rendition of such decision. On such an appeal, security for damages and costs must be given as in the case of other appeals in cases to which the United States is a party. 26 St. at L. 138, § 15. 6 Latham's Appeal, 9 Wall. 145. Where an appeal was allowed on the filing of a bond "with security to be approved by the court," it was held that the appeal was perfected when the bond with its approval was filed. Farmers' L. & Tr. Co. v. Chicago & N. P. R. Co. (C. C. A.), 73 Fed. R. 314. Where, after the allowance of the ap peal, a motion for a rehearing was made and subsequently the bond was approved and filed, it was held that the appeal was not pending till the bond was filed. An appeal is not taken until the petition and the order for its allowance, and bond, or some one of these papers, is filed in the court below. Brandies v. Cochrane, 105 U. S. 262; Credit Co. Ld. v. Arkansas C. Ry. Co., 128 U. S. 258, 261. 7 Reily v. Lamar, 2 Cranch, 344; Brockett v. Brockett, 2 How. 238; Jacobs v. George, 150 U. S. 415, 416. In such a case an entry of the allowance of the appeal should be made in the minutes, Vansant v. Gaslight Co., 99 U. S. 213; or recited in the decree. Miltenberger v. Logansport Ry. Co., 106 U. S. 286. 8 Jacobs v. George, 150 U. S. 415. 9 Ibid. |