supersedeas bond has been filed and approved, or a defective writ of error issued, the proper remedy is a motion to vacate the supersedeas, or to dismiss the writ of error," as the case may be; not an application for a mandamus to compel the inferior court to enforce the judgment.49 Upon a motion to vacate a supersedeas, so much of the record must be printed as to enable the court to understand the case, unless the parties agree on the facts.50 Notice of the motion must be given to the appellant or plaintiff in error. In the absence of fraud, on a motion to vacate a supersedeas for an amendable defect in the bond, the appellate court will usually order that the supersedeas be vacated, unless the appellant or plaintiff in error files a new bond in such a sum and within such a time as may be allowed by the court. When the supersedeas bond is a nullity because filed or allowed too late or too soon,53 or because the writ of error was not sued out or served in time," a motion to vacate the supersedeas will be denied as useless. Upon a writ of error to a final order in a condemnation proceeding instituted in a State and removed to a Federal court, the Supreme Court entered an order modifying the supersedeas, by directing that it have no greater extent than the State statute allowed in case of an appeal to a State court of review.55 The issue of an execution against a judgment debtor is not a prerequisite to a proceeding against the sureties on a supersedeas bond. An attachment or trustee process from a State 56 52 47 Power v. Baker, 112 U. S. 710; Ex parte French, 100 U. S. 1. 48 Ex parte French, 100 U. S. 1. 52 Knox County v. U. S., 131 U. S. clxvi. Where the bond failed to name any penal sum permission was given to file a new bond nunc pro tunc. Union Pac. R. Co. v. Callaghan, 161 U. S. 91. 53 Ex parte Ralston, 119 U. S. 613. 54 Western A. L. Cons. Co. v. McGillis, 127 U. S. 776. 55 East Tenn., V. & G. R. Co. v. Southern Tel. Co., 112 U. S. 306. 56 Babbitt v. Finn, 101 U. S. 7. The liability of the sureties upon a super sedeas bond to secure loss by the deterioration of attached property is not affected by the omission to enter a personal judgment against the defendant when after the sale there is a deficiency in the amount found to be due the plaintiff. Dexter, H. & Co. v. Sayward, 84 Fed. R. 296. Cf. s. C., 79 Fed. R. 237. Nor are they relieved because the plaintiff in error failed to state what was necessary to give jurisdiction to the Circuit Court of Appeals. Ibid. A suit may be brought against the sureties upon the filing of the mandate below without waiting for the entry of judgment upon that mandate. Davis v. Patrick (C. C. A.), 57 Fed. R. 909. court against the sureties to a supersedeas bond in a suit against the obligee is no defense to a suit in the Federal court on the supersedeas bond. It is the practice in admiralty in the Second Circuit,58 and in Fifth Circuit, in all cases in Alabama, where the State practice permits this,59 on entering a decree of affirmance, for the Circuit Court to give summary judgment against the obligors on the supersedeas bond. § 511. Return to writ of error or appeal.- A writ of error should be returned to the appellate court on or before the return-day thereof, together with an authenticated transcript of the record, an assignment of errors, a prayer for a reversal, and the original citation to the adverse party, all of which should be annexed thereto. If, however, the writ is served 57 Rosenstein v. Tarr, 51 Fed. R. 368; S. C. as Tarr v. Rosenstein (C. C. A.), 53 Fed. R. 112. 58 The Sydney, 47 Fed. R. 260, 262; The Wanata, 95 U. S. 600; The Belgenland, 108 U.S. 153. See also Hiriart v. Ballon, 9 Pet. 156; Beall v. New Mexico, 16 Wall. 535; Marchand v. Frellsen. 105 U. S. 423; Ex parte Saw yer, 21 Wall. 235; Babbitt v. Shields, 101 U. S. 7. 59 Gordon v. Third Nat. Bank (C. C. A.), 56 Fed. R. 790; s. C., Third Nat. Bank v. Gordon, 53 Fed. R. 471. See Humes v. Third Nat. Bank, 54 Fed. R. 917; s. C., In re Humes, 149 U. S. 192. An order denying a motion for a summary judgment against the sureties was held, in the district of Washington, to be no bar to a subsequent suit against them. Dexter, H. & Co. v. Sayward, 84 Fed. R. 296. § 511. 1U. S. R. S., § 997; Wilson v. Daniel, 3 Dall. 401; S. C. Rule 35. The copy of the record is sufficiently authenticated if there is attached to the same a certificate that the writing thereto attached is a true transcript of the record, signed by the clerk or his deputy, and under the seal of the court. Garneau v. Dozier, 100 U. S. 7; Missouri, K. & T. Ry. Co. v. Dinsmore, 108 U. S. 30; S. C. Rule 8; C. C. A. Rule 14. It has been held that a certificate that the "foregoing is a true, full and complete record in the above entitled cause "is sufficient, Pennsylvania Co. v. Jacksonville, T. & K. W. Ry. Co. (C. C. A.). 55 Fed. R. 131; but not a certificate that the papers contained in the transcript are correct copies without a statement that the transcript is complete, Meyer v. Mansur & T. I. Co. (C. C. A.), 85 Fed. R. 874; but see Burnham v. No. Chicago St. R. Co. (C. C. A.), 87 Fed. R. 168; nor a certificate to the correctness of the copies of the pleadings which is silent as to the copies of the orders and decrees. Ruby v. Atkinson (C. C. A.), 93 Fed. R. 577. When the transcript is sent to the Circuit Court of Appeals, a statement in the certificate that it is made for the Supreme Court is immaterial. McClellan v. Pyeatt (C. C. A.). 49 Fed. R. 259. The seal and signature are both requisite. S. C. Rule 8; C. C. A. Rule 14. Leave has been given to withdraw the record and file the same nunc pro tunc with the clerk's signature added thereto, when the seal was affixed to the record and a motion to dis miss for the want of the clerk's sig before the return-day, the appellate court may allow the writ or the transcript to be filed at any time during the term in which the return-day falls. The destruction of the writ without the fault of the plaintiff in error will excuse a return of the original paper, provided a copy of the writ and the transcript and other papers are duly filed. The return-day of an appeal is the day named in the citation. The record must be complete, and contain in itself without references aliunde all the papers, exhibits, depositions, and other proceedings which are necessary to the hearing. A copy of the opinion or opinions filed in the case must be annexed to and transmitted with nature was made after the time to appeal had expired. Idaho & Oregon L. Imp. Co. v. Bradbury, 132 U. S. 509, 513. Cf. Burnham v. No. Chicago St. Ry. Co. (C. C. A.), 87 Fed. R. 168. Where the seal and signature were both wanting, the court dismissed the writ of error, but allowed the plaintiff in error to withdraw the record and sue out a new writ, since his time had not expired. Blitz v. Brown, 7 Wall. 693. 2 Mussina v. Cavazos, 6 Wall. 355, 359; Wood v. Lide, 4 Cranch, 180; Pickett v. Legerwood, 7 Pet. 144. 3 Mussina v. Cavazos, 6 Wall. 355. 4S. C. Rule 8; C. C. A. Rule 14; Redfield v. Parks, 130 U. S. 623. See Hoe v. Kahler, 27 Fed. R. 145. The original pleadings which have been amended need not be included in the transcript when the amended pleadings are included. Union Pacific Ry. Co. v. U. S., 116 U. S. 402. On a second appeal from the Court of Claims, findings of fact on the first hearing in a decision reversed upon the former appeal need not be included in the transcript. Union Pac. Ry. Co. v. U. S., 116 U. S. 402. See supra, § 485; infra, § 513. The transcript need not contain the names of the jurors. Owens v. Hanney, 9 Cranch, 180. The transcript should not contain affidavits on a motion for a continuance. Campbell v. Rankin, 99 U. S. 201. Nor affidavits which were considered upon a motion for a new trial. Evans v. Stettnisch, 149 U. S. 605. Nor any affidavits not admitted in evidence on a trial or hearing. Baltimore & P. R. Co. v. Sixth Presbyterian Church, 91 U. S. 127; England v. Gebhardt, 112 U. S. 502; Craig v. Smith, 100 U. S. 226; Thomson v. Wooster, 114 U. S. 104; Travelers' Protective Ass'n v. Gilbert (C. C. A.), 101 Fed. R. 46. Affidavits can only be considered upon a writ of error when they are included in the bill of exceptions. Evans v. Stettnisch, 149 U. S. 605; Stewart v. Wyoming C. R. Co., 128 U. S. 383, 390. Nor any let ters or other papers not contained or referred to in the bill of exceptions or incorporated in a pleading. San Pedro & Canon A. A. Co. v. U. S., 146 U. S. 120; Whitten v. Tomlinson, 160 U. S. 231; Travelers' Protective Ass'n v. Gilbert (C. C. A.), 101 Fed. R. 46. All such papers will be disregarded by the court of review. Ibid.; Suydam v. Williamson, 20 How. 427; Duncan v. Atchison, T. & S. F. R. Co. (C. C. A.), 72 Fed. R. 808. The fact that a paper is on the files of the clerk's office with other papers in a case does not make it part of the record, if it is neither a pleading nor a process, nor made a part of the record by the action of the court. England v. Gebhardt, 112 U. S. 502. The court the record. 6 7 The practice as to transcripts of the record in admiralty and upon appeals from the Court of Claims has Deen previously described. When in the opinion of the presiding judge in any Circuit Court, or District Court exercising the jurisdiction of a Circuit of first instance has no power to revise the record and expunge matter that is not impertinent nor scandalous in order to shorten the transcript. Smith v. McIntyre, 84 Fed. R. 721. R. 145. But see Hoe v. Kahler, 27 Fed. The transcript filed by complainant must contain the proceedings upon a cross-bill which has been dismissed when the complainant to the cross-bill has appealed, even though the complainant has not named him as appellee; and the court as an alternative to granting a motion to dismiss may compel the complainant to supply an omission of such proceedings instead of taking the more dilatory course of a writ of certiorari for diminution of the record. Gregory v. Pike, 64 Fed. R. 415. Where there has been a previous appeal, matters which preceded the mandate thereupon and which do not tend to explain it should ordinarily be omitted. Nashua & L. R. Corp. v. Boston & L. R. Corp. (C. C. A.), 61 Fed. R. 237. Proceedings upon an application for a rehearing which tend to explain the original decree may be included. Hoe v. Kahler, 27 Fed. R. 145. Where several distinct proceedings are pending about the same matter below, nothing should be included in the record which does not have some relation to that in which was entered the order from which the appeal is taken. Burnham v. North Chicago Ry. Co. (C. C. A.), 87 Fed. R. 168. But see Fitzgerald v. Evans (C. C. A.), 49 Fed. R. 426. It is proper for the clerk to require of the attorney for the appellant or plaintiff in error a præcipe stating what the transcript should contain, and to attach a copy thereof to the same. It has been held that, in such a case, where the record is voluminous, a certificate will be suffi cient which states that the transcript is a full and correct copy of everything specified in the præcipe, Burnham v. North Chicago Ry. Co. (C. C. A.), 87 Fed. R. 168; and that the appeal or writ of error will not be dismissed for omissions thus made at the direction of the attorney for the plaintiff in error or appellant, the proper remedy being a certiorari for a diminution of the record. Nashua & L. R. Corp. v. Boston & L. R. Corp. (C. C. A.), 61 Fed. R. 237. The more usual practice is for the parties or their attorneys to stipulate what the transcript shall contain. It is proper to omit parts of depositions which neither party offered in evidence. Blanks v. Klein (C. C. A.), 49 Fed. R. 1. Where parts of the record are omitted the transcript should indicate the fact and the nature of the omission. Nashua & L. R. Corp. v. Boston & L. R. Corp. (C. C. A.), 61 Fed. R. 237. Where part of the records of the court below had been destroyed by fire without the fault of either party, the Circuit Court of Appeals heard an appeal on a transcript of what remained. Cutting v. Tavares, O. & A. R. Co., 61 Fed. R. 150. 5S. C. Rule 8; C. C. A. Rule 14. Supra, § 429. See C. C. A. Rule 14; Adm. Rule 52; S. C. Rule 8; Adm. Rules, 2d Ct., 4, 5. 7 Supra, § 457. See Old Settlers v. U. S., 148 U. S. 427, 463, 464. Court, it is necessary or proper that original papers of any kind be inspected in the appellate court on appeal or writ of error, such presiding judge may make such rule or order for the safe-keeping, transport, and return of such papers as he deems proper, and the Supreme Court will receive and consider such original papers in connection with the transcript and proceedings. Whenever any record contains any document, paper, testimony, or other proceeding in a foreign language, the record must also contain a translation thereof made under the authority of the inferior court or admitted to be correct. Otherwise, on the report of the clerk, the court of review will remand the case to the inferior court in order that such a translation may be there supplied and inserted in the record.10 "1. Models, diagrams, and exhibits of material forming part of the evidence taken in the court below, in any case pending in this court, on writ of error or appeal, shall be placed in the custody of the marshal of this court at least one month before the case is heard or submitted. 2. All models, diagrams, and exhibits of material, placed in the custody of the marshal for the inspection of the court on the hearing of a case, must be taken away by the parties within one month after the case is decided. When this is not done, it shall be the duty of the marshal to notify the counsel in the case, by mail or otherwise, of the requirements of this rule; and if the articles are not removed within a reasonable time after the notice is given, he shall destroy them, or make such other disposition of them as to him may seem best." "1 It is the duty of the plaintiff in error or appellant to docket the cause and file the record thereof with the clerk of the appellate court before the return-day, which must be within thirty days after the signature of the citation,12 except in the Supreme Court, on appeals or writs of error from California, Oregon, Washington, New Mexico, Utah, Nevada, Arizona, Montana, and Idaho, when the period of thirty days is extended to sixty days.13 8 S. C. Rule 8; C. C. A. Rule 14. 9 S. C. Rule 11; C. C. A. Rule 15. 10 S. C. Rule 11; C. C. A. Rule 15. 11 S. C. Rule 33; C. C. A. Rule 34. 12 S. C. Rules 8 and 9; C. C. A. Rule 14. 13 S. C. Rule 9. |