Revised Statutes and rules of the appellate courts, counsel will not be heard, except at the request of the court; and errors not specified according to this rule will be disregarded; but the court, at its option, may notice a plain error not assigned or specified." The appellate court will take notice of a question affecting the jurisdiction, although not specified in the assignment of errors, and in such a case may direct that briefs be filed on that point.38 39 When according to these rules a plaintiff in error or appellant is in default, the case may be dismissed on motion; and when an appellee or a defendant in error is in default under this rule, he will not be heard except on his adversary's con 36 See § 406; U. S. R. S., § 997, and S. C. Rule 35. 37 S. C. Rule 21; C. C. A. Rules 11, 24; Treat v. Jemison, 20 Wall. 652; Ryan v. Koch, 17 Wall. 19; Boston M. Co. v. Eagle M. Co., 115 U. S. 221; Hunt v. Blackburn, 127 U. S. 774; Stevenson v. Barbour, 140 U. S. 48. The following assignment of an error was held sufficiently specific: "The court below sustained the motion to dismiss solely upon the ground that the appeal had not been taken within the statutory time of sixty days after the assessment, deciding that the time commenced to run from the day when the commissioners met and viewed the land, and not from the date of the return of the assessment." Clinton v. Missouri Pac. Ry. Co., 122 U. S. 469. The following assignments of error have been held too vague and indefinite to be considered: (1) "The court erred in admitting any evidence in the case." (2) "The court erred in submitting the case to the jury, and entering up a judgment upon the verdict." (3) "The court erred in refusing to sustain the demurrer to the evidence offered by the plaintiff in error." (4) "The court erred in overruling the motion for a new trial asked by plaintiff in error." (5) "The court erred in overruling the motion in arrest of judgment asked by plaintiff in error." (6) "The court erred in entering up judgment recognizing and enforcing a mechanic's lien." (7) "The court erred in construing Exhibit A' (which is letter of Van Stone to Schupp, found at page 76 of printed record) to be a waiver of the time in which the mill was to be completed." (8) "The court erred in overruling the demurrer to the evidence." Van Stone v. Stillwell & Bierce Mfg. Co., 142 U. S. 128. See also Stevenson v. Barbour, 140 U. S. 48; Branch v. Texas Lumber Mfg. Co. (C. C. A.), 53 Fed. R. 849; City of Lincoln v. Sun V. St. L. Co., 59 Fed. R. 756; Rowe v. Phelps, 152 U. S. 87: Lloyd v. Chapman (C. C. A.), 93 Fed. R. 599; Ry. Officials & Emp. Acc. Ass'n v. Wilson (C. C. A.), 100 Fed. R. 368; the cases cited supra, 507, 511, and a valuable note in 90 Fed. R. cxlvi, cliii. The specification of errors in the brief should conform substantially to the assignment of errors in the record. Vider v. O'Brien (C. C. A.), 62 Fed. R. 326. As to setting forth the evidence in the specifications, see Haldane v. U. S. (C. C. A.), 69 Fed. R. 819. As to the references to the record, see Nat. Cash Reg. Co. v. Leland (C. C. A.), 94 Fed. R. 502. 38 Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co., 116 U. S. 472. 39 S. C. Rule 21; C. C. A. Rules 11, 24. sent and at the request of the court. 43 No printed argument will be received after the oral argument begins or after a case has been submitted, except upon leave granted in open court after notice to opposing counsel." When there is no appearance for the plaintiff in error when the case is called for argument, the defendant may have him called and have the writ of error or appeal dismissed, or may open the record and pray for an affirmance.42 A motion to set aside a judgment for affirmance for a default, which would otherwise be excused, will be denied if it appears that the judgment must be affirmed on the merits. When the defendant in error then fails to appear, the court may proceed to hear argument on the part of the plaintiff, and give judgment according to the right of the cause." When a case is reached and no appearance is entered for either party, the case is dismissed at the cost of the plaintiff.45 A printed argument filed on behalf of either party is equivalent to an appearance on his behalf. In the Supreme Court when no oral argument is made for one of the parties, only one counsel will be heard for the adverse party. Otherwise, each party is entitled to be heard by two counsel and no more, except by leave of the court. Two hours on each side is allowed on the argument of an appeal or writ of error, and one hour on the argument of a motion. By leave of the court granted before the argument begins more time may be allowed.50 The time may be apportioned between counsel on each side at their discretion; but a fair opening of the case must be made by the party having the opening and closing arguments. The plaintiff in error or appellant is entitled to open and conclude the case. Where there are cross-appeals, they are argued together as one case, and the plaintiff below has the right to open and conclude the argument.53 No per 52 49 40 S. C. Rule 21; C. C. A. Rules 11, 24. ber 11, 1893, 150 U. S. 713; C. C. A. 41 S. C. Rule 20. Rule 24. 42 S. C. Rule 16; Hunt v. Blackburn, 127 U. S. 774; Stevenson v. Barbour, 140 U. S. 48; Boston M. Co. v. Eagle M. Co., 115 U. S. 221. 43 Treat v. Jemison, 131 U. S. cxxxv. 44 S. C. Rule 17. 45 S. C. Rule 18. 46 S. C. Rule 20. 48 S. C. Rule 21; C. C. A. Rules 24, 25. 49 S. C. Rules 22 and 6; C. C. A. Rules 25 and 21. 50 S. C. Rule 22; C. C. A. Rule 25. 51 S. C. Rule 22; C. C. A. Rule 25. 52 S. C. Rule 22; C. C. A. Rule 25. 53 S. C. Rule 22; C. C. A. Rule 25; L. Bucki & Son L. Co. v. Atl. Lum 47 S. C. Rule 21 as amended Decem- ber Co. (C. C. A.), 93 Fed. R. 765. sons not appearing in the record have the right to be heard on an appeal or writ of error," but the trustee of a bankrupt may be heard, as well as the bankrupt, on a writ of error brought by the bankrupt of which the trustee is entitled to the benefit.55 Where two cases involve the same question the appellate court may direct that they be argued together.56 In a case in which the United States are parties, the court will rarely hear counsel employed by another executive department in opposition to the Attorney-General or his representative." Appellees who have perfected no cross-appeal cannot be heard except in support of the decree below.58 Where a board of county commissioners alone brought a writ of error to an order for a mandamus against them and the clerk and treasurer of the county, who did not join in the writ, the board was not allowed to allege an error affecting the clerk and treasurer, but not the board. The appellate court may refuse to hear argument in support of a writ of error in a criminal case where the plaintiff in error has put himself beyond the reach of process of the court below. On an appeal from an order upon a petition for the writ of habeas corpus, where the petitioner had in pursuance of the order been placed without the jurisdiction of the court and of the United States, the Supreme Court dismissed the writ without an examination into its merits.61 "No justice or judge before whom a cause or question shall have been tried or heard in a Circuit or District Court shall sit in the trial or hearing of such cause or question in the Circuit Court of Appeals." 62 59 § 515. Rehearings.- No rehearing or reargument will be allowed when not applied for till after the term at which a cause is decided, unless by special leave of the court granted 54 Harrison v. Nixon, 8 Pet. 483; U. S. v. Patterson, 15 How. 10; The Mabey, 10 Wall. 419; The William Bagley v. U. S., 5 Wall. 377. 55 Hill v. Harding, 107 U. S. 631. 56 Ableman v. Booth, 18 How. 479. 57 The Gray Jacket, 5 Wall. 370. 58 The Slavers, 2 Wall. 383; The Stephen Morgan, 94 U. S. 599; Loudon v. Taxing Dist. of Shelby County, 104 U. S. 771; Gage v. Pumpelly, 115 U. S. 454. 59 Cherokee County Com'rs v. Wilson, 109 U. S. 621. See Indiana So. R. Co. v. Liverpool, L. & G. Ins. Co., 109 U. S. 168. 60 Smith v. U. S., 94 U. S. 97. 61 Cheiong Al Moy v. U. S., 113 U. S. 216. 62 26 St. at L. 826, § 4; Am. Construction Co. v. Jacksonville, T. & K. R. Co., 148 U. S. 372; Morgan v. Dillingham, 174 U. S. 153. 5 during the term. Nor, at least in an equity case, after the cause has been remitted to the court below, unless the mandate has been recalled. Where the rule required mandates to be retained a specified time after the decision, it was held that a motion for a reargument would not be entertained after that time; unless it was shown that counsel were not notified of the decision or that the grounds of the motion could not have been easily ascertained within the time. Nor, after the decision of any case, unless a justice who concurred in the decision moves for a rehearing, even if the court were equally divided; and not then unless the proposition receives the support of a majority of the court. The proper practice for a party who desires a rehearing in the Supreme Court is to submit without argument a brief printed petition or suggestion of the points thought important, which must be supported by the certificate of counsel that in his opinion the petition is well founded and is not made for the purpose of delay. If upon such petitioner's suggestion, any judge who concurred in the decision thinks proper to move for a rehearing, the motion will be considered. Otherwise the motion will be denied as of course. No reply to the application is allowed to the other side; nor does the court usually write an opinion when the pe § 515. 1 Hudson v. Guestier, 7 Cranch, 1; Bushnell v. Crooke Min. & Sm. Co., 150 U. S. 82; Williams v. Conger, 131 U. S. 390; S. C. Rule 30; C. C. A. Rule 29. 2 Browder v. McArthur, 7 Wheat. 58; Sibbald v. U. S., 12 Pet. 488; Washington Bridge Co. v. Stewart, 3 How. 413; Peck v. Sanderson, 18 How. 42. 3 Killian v. Ebbinghaus, 111 U. S. 798; Ex parte Crenshaw, 15 Pet. 119; U. S. v. Gomez, 23 How. 326. volved. Shreveport v. Holmes, 125 U. S. 694. 7S. C. Rule 30; C. C. A. Rule 29; Hinds v. Keith (C. C. A.), 57 Fed. R. 10; U. S. v. The Dago (C. C. A.), 63 Fed. R. 182; Gregory v. Pike (C. C. A.), 67 Fed. R. 837; supra, § 352. For a form, see New Orleans v. Walker, 176 U. S. 92. 8 Public Schools v. Walker, 9 Wall. 603. 9 Ibid. 10 Ambler v. Whipple, 23 Wall. 278. 4 Crabtree v. McCurtain (C. C. A.), If the hearing in the appellate court 66 Fed. R. 1. Brown v. Aspden, 14 How. 25; U. S. v. Knight, 1 Black, 488; Public Schools v. Walker, 9 Wall. 603; Shreveport v. Holmes, 125 U. S. 694; S. C. Rule 30; C. C. A. Rule 29. "Ambler v. Whipple, 23 Wall. 278. Very rarely then unless an important constitutional question is in was on an imperfect record, and a large part of the material evidence which was before the court below was omitted from the transcript, and there was no laches on the part of the appellee in failing to examine and perfect the record before the hearing, a strong case for a reargu ment is presented. Ambler v. Whip tition is denied.10 It has been said that the effect of granting a rehearing is to make the cause stand as if no judgment had been entered in the court of review;" but an equal division of the court upon a rehearing of a judgment of reversal results in a reversal, not in an affirmance.12 § 516. Further proof on appeal.- On an appeal in equity no new evidence can be taken either below or above for the consideration of the appellate court. The same rule applies to proceedings on writs of error to review judgments at common law. On an appeal from a decree in admiralty in a prize case, further proof may be received by the order of the appellate court. It is the practice of the Supreme Court in prize cases to hear the cause in the first instance upon the evidence transmitted from the court below; and then to decide upon that evidence whether it is proper to allow further proof. An order for further proof is always made with extreme caution, and only where the ends of justice clearly require it. Upon a ple, 23 Wall. 278. A rehearing was granted on the ground that the decree brought up by the appeal was not the one recited in the prayer for an appeal, but one rendered subsequently thereto, and merely in execution of it; so that the parties might present all the questions which arose both on the original transcript and upon the transcript as corrected. Chicago & V. R. Co. v. Fosdick, 106 U. S. 47, 80. A rehearing was refused when the application was based on the ground that the record of another suit, the decree in which had not been pleaded and was not rendered upon the merits, should be embodied in the transcript. Morgan County v. Allen, 103 U. S. 515. A rehearing will ordinarily be refused when asked upon a theory inconsistent with the original argument and not then presented. Merriman v. Chicago & E. I. R. Co. (C. C. A.), 66 Fed. R. 663. A rehearing will not be granted merely because the case is one of importance. Camfield v. U. S. (C. C. A.), 66 Fed. R. 101. And very rarely by a Circuit Court of Appeals in a case where its decision is not final. Texas & Pac. Ry. Co. v. Gentry (C. C. A.), 57 Fed. R. 422. A rehearing will not be granted because the court misquoted testimony in its opinion, where such misquotation did not affect the result. Torrent v. Duluth Lumber Co., 32 Fed. R. 229. A rehearing on appeal cannot be granted for newly discovered evidence. Maxwell Land Grant Case, 122 U. S. 365. 11 Hook v. Mercantile Tr. Co. (C. C. A.), 95 Fed. R. 41. 12 Carmichael v. Eberle, 177 U. S. 63. § 516. 1 Holmes v. Trout, 7 Pet. 171; Mitchell v. U. S., 9 Pet. 711; Pacific R. Co. of Mo. v. Ketchum, 95 U. S. 1; Boone v. Chiles, 10 Pet. 177. 2 The Lady Pike, 21 Wall. 1; The Samuel, 1 Wheat. 9; The Mary, 8 Cranch, 388; The Adeline, 9 Cranch, 244; The Atalanta, 3 Wheat. 409; supra, § 430. 3 The London Packet, 2 Wheat. 371. 4 The Gray Jacket, 5 Wall. 342. |