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plaintiff in error or appellant has been paid voluntarily by the respondent a sum of money, or has accepted a transfer of property under the judgment or decree brought up for review," at least where he appeals from a part of the decree which is entirely disconnected with that which directs the payment or conveyance. An appeal will be dismissed by the court when it is shown from affidavits filed on behalf of persons not parties to the suit, that the appeal is not conducted by parties having adverse interests, but is a collusive appeal taken for the purpose of obtaining a decision.43 A motion to dismiss a writ of error or appeal upon the ground of want of jurisdiction, or, it seems, for any other ground except a failure to take the same in due time," or a failure to perfect the same,* may be made at any time, even before the term to which the return should regularly be made. With the motion to dismiss in the Supreme Court may be united a motion to affirm,

bill for an injunction may be dismissed when the act sought to be enjoined has been committed pending the appeal, and there has been no pecuniary damage in consequence to the appellant; for example, when the complainant prayed for an injunction against a proceeding connected with an election, and in that case the Supreme Court took judicial notice of the fact that the election had taken place. Mills v. Green, 159 U. S. 651. But see Matter of Madden, 148 N. Y. 136; Matter of Goodman, 146 N. Y. 284; People ex rel. Press Pub. Co. v. Martin, 72 Hun, 354; s. C., 142 N. Y. 228; Matter of Cuddebeck, 3 N. Y. App. Div. 103, 108.

42 Erwin v. Lowry, 7 How. 172, 184. Where the Supreme Court of a State enjoined the collection of the judgment of the Supreme Court of the District of Columbia beyond a certain sum, it was held that the plaintiff was not estopped from prosecuting his writ of error to the Supreme Court of the United States by the fact that he had accepted that sum. Embry v. Palmer, 107 U. S. 3.

43 Cleveland v. Chamberlain, 1

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Black, 419; Embry v. Palmer, 107 U. S. 3; Benner v. Hayes (C. C. A.), 80 Fed. R. 953. Upon a motion to dismiss an appeal on the ground that the controversy is fictitious, where the evidence leaves the question doubtful, the court will grant a rule to show cause why the suit should not be dismissed, with leave to both parties to take and file depositions in support of and against the motion. Am. Wood Paper Co. v. Heft, 8 Wall. 383; East Tenn., V. & G. R. Co. v. So. Tel. Co., 125 U. S. 695.

44 Such a motion must be reasonably made. Bryar v. Campbell, 177 U. S. 649.

45 Supra, §§ 509, 511.

46 Ex parte Russell, 13 Wall. 664; Clark v. Hancock, 94 U. S. 493; Thomas v. Wooldridge, 23 Wall. 283; Whitney v. Cook, 99 U. S. 607; Whitcomb v. Smithson, 175 U. S. 635; Sugg v. Thornton, 132 U. S. 524; supra, note 2; Hook v. Mercantile Tr. Co. (C. C. A.), 95 Fed. R. 41. Laches is no ground for denying a motion to dismiss because of a settlement of the controversy. Little v. Bowers, 134 U. S. 547.

on the ground that although the record may show that the Supreme Court has jurisdiction it is manifest that the writ or appeal was taken for delay only, or that the question on which the jurisdiction depends is so frivolous as not to need further argument. Such a motion will not be granted unless there is a colorable ground for the motion to dismiss,48 except in a case where the appeal is clearly frivolous." It seems that such a motion may not be granted if united with a motion to dismiss for a defect in the bond.50 The motion to affirm may be united with a motion to dismiss for a defect in the form of a writ of error, although it is usually coupled with a motion to dismiss for want of jurisdiction.51

The motion, like all other motions in the Supreme Court, must be reduced to writing, and contain a brief statement of the facts and objects of the motion.52 It is the safer and the usual practice for the moving party to print the transcript before the submission of the motion, unless it has been previously printed by his adversary. The motion papers should contain so much of the record as to enable the court to act understandingly.53 The motion day in the Supreme Court is Monday throughout the term. No motion to dismiss, except on special assignment by the court, will be heard, unless previous notice has been given to the adverse party, or his counsel or attorney.55 The party moving to dismiss must serve notice of the motion, with a copy of his brief or argument, on the counsel for his opponent in the Supreme Court at least three weeks before the time fixed for submitting the motion, in all cases except where such counsel resides west of the Rocky

47 S. C. Rule 6; Whitney v. Cook, 99 U. S. 607; Hinckley v. Morton, 103 U. S. 764; Micas v. Williams, 104 U. S. 556; Swope v. Leffingwell, 105 U. S. 3; Chanute City v. Trader, 132 U. S. 210.

48 School Dist. v. Hall, 106 U. S. 428; Hinckley v. Morton, 103 U. S. 764; Davies v. Corbin, 113 U. S. 687; Walsington v. Nevin, 128 U. S. 578; New Orleans v. Louisiana Const. Co., 129 U. S. 45; The Alaska, 130 U. S. 201.

49 Chanute City v. Trader, 132 U. S.

210; The S. C. Tyron, 105 U. S. 267;
Swope v. Leffingwell, 105 U. S. 3;
Sugg v. Thornton, 132 U. S. 524. But
see Amory v. Amory, 91 U. S. 356.

50 Gay v. Parpart, 101 U. S. 391.
51 Evans v. Brown, 109 U. S. 180.
52 S. C. Rule 6.

53 Texas Land & Cattle Co. v. Scott, 137 U. S. 436; Waterville v. Van Slyke, 115 U. 290; Meyer v. Walsh, 108 U. S. 17.

54 S. C. Rule 6.
55 S. C. Rule 6.

Mountains, when the notice must be at least thirty days." Affidavits of the deposit in the mail of the notice and brief, properly addressed to the counsel to be served, duly postpaid, in time to reach him by due course of mail, three weeks or thirty days, as the case may be, before the time fixed by the notice, is prima facie evidence of service on counsel who reside without the District of Columbia." Further time may, however, be given either party by the court.58 The motion, if not a motion to docket and dismiss for failure to file the record, must, in the first instance, be submitted on printed briefs and arguments.59 If the court requires further argument on the subject, it will usually be ordered in connection with the argument of the case on the merits.60 The motion to affirm, if made before the record is printed, will rarely be granted unless the motion papers which must be printed are very full, and clearly show the frivolous character of the appeal or error."1 Affidavits may be used in support of the motion in a proper case.62 Where the question is doubtful or the examination of a bulky record is required, it is usual to postpone the decision till the argument of the whole case. After one motion to dismiss has been filed and set down for a hearing, the party that filed it has no right to file a second motion to dismiss upon new grounds without leave of the court. Such leave will not be granted upon formal grounds only. If the appeal is wholly insufficient to sustain the jurisdiction of the appellate court, that court may of its own motion, at the hearing on the merits, have notice of the insufficiency. After the dismissal of a writ of error or appeal, the court may, but rarely will, reinstate the same upon a motion made at the same term at which the order of dismissal was entered.67 The allowance

56 S. C. Rule 6.

57 S. C. Rule 6.

58 S. C. Rule 6.

59 S. C. Rule 6.

60 S. C. Rule 6.

61 Crane Iron Co. v. Hoagland, 108 U. S. 6; Carey v. Houston & T. C. Ry. Co., 150 U. S. 170; The Colonel McLeod, 112 U. S. 710.

62 Rector v. Lipscomb, 141 U. S. 557; Whiteside v. Hazleton, 110 U. S. 296; supra, § 504. For a case where

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of such an order rests in the discretion of the appellate court.6 A motion to reinstate the cause must be made at the term at which the order of dismissal was entered.69 Long delay may be a ground for denying such a motion, even though the motion is made at the term at which the order of dismissal was entered. Such a motion may be granted, where the notice of the motion to dismiss was insufficient and irregular, since it designated no time for hearing; " where the omission to return the citation arose from the neglect of the court below, and the citation has been lost or destroyed; where the trustee in bankruptcy applies to have a case reinstated which was dismissed, and to be substituted for the bankrupt as plaintiff in error, if he applies at the same term; 73 where an appeal has been dismissed for the failure of the appellant to file a transcript within the time required by the rule of the court, provided that the transcript is filed during the term.74 § 513. Printing the record. The record must be printed for the use of the court and counsel. The following rule regulates printing the record in the Supreme Court:

"1. In all cases the plaintiff in error or appellant, on docketing a case and filing the record, shall enter into an undertaking to the clerk, with surety to his satisfaction for the payment of his fees, or otherwise satisfy him in that behalf. 2. The clerk shall cause an estimate to be made of the cost of printing the record, and of his fee for preparing it for the printer and supervising the printing, and shall notify to the party docketing the case the amount of the estimate. If he shall not pay it within a reasonable time, the clerk shall notify the adverse party, and he may pay it. If neither party shall pay it, and for want of such payment the record shall not have been printed when a case is reached in the regular call of the docket,

Knox v. Exchange Bank, 12 Wall. 379; Alviso v. U. S., 6 Wall. 457.

68 Gwin v. Breedlove, 15 Pet. 284; James v. McCormack, 105 U. S. 265. 69 Rice v. Minn. & N. W. R. Co., 21 How. 82; Selma & M. R. Co. v. Louisiana Nat. Bank, 94 U. S. 253. But see Jackson v. Ashton, 10 Pet. 480.

70 Johnson v. Wilkins, 118 U. S. 228; Deming's Appeal, 110 Wall. 251.

71 Glenny v. Langdon, 94 U. S. 604. 72 Alviso v. U. S., 6 Wall. 457. 73 Knox v. Exchange Bank, 12 Wall. 379.

74 Bank of U. S. v. Swan, 3 Pet. 68; West Chicago St. R. Co. v. Ellsworth (C. C. A.), 77 Fed. R. 664. But see Rule 8 as amended, 137 U. S. 710.

after March 1, 1884, the case shall be dismissed. 3. Upon payment by either party of the amount estimated by the clerk, twenty-five copies of the record shall be printed, under his supervision, for the use of the court and of counsel. 4. 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 8, section 4, as are necessary to be printed; and of the whole record in cases of original jurisdiction. 5. The clerk shall supervise the printing, and see that the printed copy is properly indexed. He shall distribute the printed copies to the justices and the reporter, from time to time, as required, and a copy to the counsel for the respective parties. 6. If the actual cost of printing the record, together with the fee of the clerk, shall be less than the amount estimated and paid, the amount of the difference shall be refunded by the clerk to the party paying it. If the actual cost and clerk's fee shall exceed the estimate, the amount of the excess shall be paid to the clerk before the delivery of a printed copy to either party or his counsel. 7. In case of reversal, affirmance, or dismissal, with costs, the amount of the cost of printing the record and of the clerk's fee shall be taxed against the party against whom costs are given, and shall be inserted in the body of the mandate or other proper process. . . 9. The plaintiff in error or appellant may, within ninety days after filing the record in this court, file with the clerk 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 ninety 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, 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 the circumstances may appear to the court

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