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Zeller v.

63. (Oct., 1875.) Where the Supreme Court of a state, on appeal, overruled an exception which had been sustained in a lower court, and, on setting aside the judgment below, remanded the case to be proceeded with according to law, – Held, that the judgment of such Supreme Court was not final; and that the writ of error must be dismissed. Switzer, 1 Otto, 487.

64. (Oct., 1876.) This court, where it manifestly has no jurisdiction over the matter in controversy, will entertain a motion to dismiss the writ of error before the return-day thereof. Clark v. Hancock, 4 Otto, 193.

65. (Oct., 1876.) Where a party prosecutes a suit as a representative creditor, and the other creditors, until notice to the contrary, have the right to rely upon him to protect their interest in the subject matter of the litigation, a notice, by the appellees, of a motion to dismiss an appeal where he is the appellant, served upon counsel representing him and the other creditors, is insufficient and irregular, if it does not specify the time when such motion will be made, although he may have entered into a stipulation with the appellees consenting to a dismissal of the appeal on their paying the costs. Glenny v. Langdon, 4 Otto, 604.

66. (Oct., 1878.) An appeal from the decree which the Circuit Court passed in exact accordance with the mandate of this court upon a previous appeal, will, upon the motion of the appellee, be dismissed with costs. Stewart v. Salamon, 7 Otto, 361.

67. (Oct., 1878.) Where a bill shows no equity in the complainant, and contains no averment that he has been injured by certain statutes of a state, this court will not pass upon an abstract question, the object of which is plainly to obtain a decision touching their constitutionality, but will dismiss the bill without prejudice. Williams v. Hagood, 8 Otto, 72.

68. (Oct., 1878.) Where the trustees or directors of a

corporation have appealed from a decree, and directed their counsel to prosecute the appeal, this court will not dismiss it on the motion of strangers to the decree, who, since it was rendered, have become the owners of a majority of the stock of the corporation. Railway Co. v. Alling, 9 Otto, 463.

69. Such trustees or directors are, in law, the managers of the property and affairs of the corporation. As such, they, in all litigation involving its action, represent it, its stockholders and creditors. If they violate their trust, the remedy must be sought in some court of original jurisdiction. 16.

70. (Oct., 1878.) Under amended Rule 6, the plaintiff in error, or the appellant, may, with a motion to dismiss the writ of error or the appeal, unite a motion to affirm the judgment or decree; but where there is no color of right to a dismissal, the case being clearly within the jurisdiction of this court, a motion to affirm merely will not be sustained. Whitney v. Cook, 9 Otto, 607.

71. (Oct., 1879.) Where the record has not been printed, a motion to dismiss an appeal or a writ of error will not be considered, where there is any question about the facts on which the motion rests. National Bank v. Insurance Co., 10 Otto, 43.

72. (Oct., 1879.) The record in this case not being complete, or properly certified, the court orders that, unless appellant causes the omissions to be supplied on or before a specified day, the appeal be dismissed. Railroad Co. v. Schutte, 10 Otto, 641.

73. (Oct., 1879.) The appeal will not, however, be dismissed in the latter case (where, at a subsequent term, the appeal is allowed, the solicitors of the appellee being present], but terms will be imposed upon the appellant. Railroad Co. v. Blair, 10 Otto, 661.

74. Dayton v. Lash (94 U. S. 112) cited and approved. Ib. 75. (Oct., 1879.) An appeal will not be dismissed upon

the ground that the decree from which it was taken was rendered by consent, but no errors will be considered here which were in law waived by such consent. Pacific Railroad v. Ketchum, 11 Otto, 289.

76. A recital in the decree that it was assented to by the solicitor of one of the parties is equivalent to a direct finding that he had authority to do what he did, and, so far as the question is one of fact only, is binding upon this court on appeal. Ib.

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1. During the session of the court, any gentleman of the bar having a cause on the docket, and wishing to use any book or books in the law-library, shall be at liberty, upon application to the clerk of the court, to receive an order to take the same (not exceeding at any one time three) from the library, he being thereby responsible for the due return of the same within a reasonable time, or when required by the clerk. And it shall be the duty of the clerk to keep, in a book for that purpose, a record of all books so delivered, which are to be charged against the party receiving the same. And in case the same shall not be so returned, the party receiving the same shall be responsible for and forfeit and pay twice the value thereof, as also one dollar per day for each day's detention beyond the limited time.


2. The clerk shall take charge of the books of the court, together with such of the duplicate law-books as Congress may direct to be transferred to the court, and arrange them in the conference-room, which he shall have fitted up in a proper manner; and he shall not permit such books to be taken therefrom by any one except the judges of the court.

3. The clerk shall deposit in the law-library, to be there carefully preserved, one copy of the printed record in every case submitted to the court for its consideration, and of all printed motions, briefs, or arguments filed therein.

Rule 8.

Return to Writ of Error and Return-day.

1. The clerk of the court to which any writ of error shall be directed may make return of the same, by transmitting a true copy of the record, and of all proceedings iu the cause, under his hand and the seal of the court.

2. In all cases brought to this court, by writ of error or appeal, to review any judgment or decree, the clerk of the court by which such judgment or decree was rendereil shall amex to and transmit with the record a copy of the opinion or opinions filed in the case.

3. No cause will hereafter be heard until a complete record, containing in itself, without references aliunde, all the papers, exhibits, depositions, and other proceedings which are necessary to the hearing in this court, shall be filed.

4. Whenever it shall be necessary or proper, in the opinion of the presiding judge in any Circuit Court, or District Court exercising Circuit Court jurisdiction, that original papers of any kind should be inspected in this court upon appeal or writ of error, such presiding judge may make such rule or order for the safe keeping, transporting, and return of such original papers as to him may seem proper; and this court will receive and consider such original papers in connection with the transcript of the proceedings.


5. In cases where final judgment is rendered more than thirty days before the first day of the next term of this court, the writ of error and citation, if taken before, must be returnable on the first day of said term, and be served before that day; but in cases where the judgment is rendered less than thirty days before the first day, the writ of error and citation may be made returnable on the third Monday of the said term, and be served before that day.





1. (Feb., 1815.) It is not necessary that the transcript of the record should contain the names of the jurors. Owens v. Hanney, 9 Cranch, 180.

2. (Feb., 1818.) An agreement of the parties entered on a transcript, stating the amount of damages to be adjudged to one of the parties, upon several alternatives (the verdict stating no alternative), not regarded by this court as a part of the record brought up by the writ of error; but a venire de novo awarded to have the damages assessed by a jury in the court below. Lanusse v. Barker, 3 Wheat. 102.

3. (Feb., 1821.) Mr. Justice Washington, after consultation with the judges, stated that, according to the rules and practice of the court, a return made by the clerk was a sufficient return. Stewart v. Ingle, 9 Wheat. 526.

4. (Jan., 1827.) The opinion of the court, or the reasons given for its judgment (unless in the case of instruction to the jury spread upon the record by a bill of exceptions), form no part of the record within the meaning of the twentyfifth section of the Judiciary Act. Nor are they made a part of the record in Tennessee by the local law of that state, requiring the judges to file their opinions in writing among the papers in the cause. Williams v. Norris, 12 Wheat. 117.

5. No orders in the state court, after the removal of the record into this court (not made by way of amendment, but introducing new matter), can be brought into the record here. The cause must be heard and determined upon the record as it stood when removed. 16.

6. (Jan., 1828.) A special verdict was found by the jury, upon which judgment was to be entered according as the opinion of the court might be upon the construction of a certain deed, which deed was referred to and made part of the special finding of the jury, but was not contained in the record thereof. A deed formed a part of a bill of exceptions taken to the opinion of the court, upon a motion for a new trial, which bill of exceptions, with the said deed, was contained in the record. The court cannot judicially know that this is the same deed which is referred to in the verdict of

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