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ant was suggested at December term, 1851, of this court, and his legal representatives did not appear by the tenth day of this term, the bill must, as to him, be entered, abated under the sixty-first rule of this court. Barribeau v. Brant, 17 How. 43.
13. Where the complainant, after filing his bill, conveyed all his interest to a trustee, and died pending an appeal which he took to this court, the trustee cannot be permitted to be made a party to the proceedings in this court.
The only persons who can appear in the stead of the complainant are those who, upon his death, succeed to the interest he then had, and upon whom the estate then devolves. Ib.
14. (Dec., 1860.) The statutes of Illinois require that a declaration in ejectment shall be served upon the actual occupant; and the practice of that state authorizes the appearance of the landlord, and his defence of the suit, either in his own name, or that of the tenant, with his consent.
And when a landlord has undertaken the defence of a suit in the name of the tenant with his consent, the tenant cannot interfere with the cause to his prejudice.
Therefore, when the defendant in ejectment in the court below died after judgment, and his attorney and landlord, who had conducted the suit in the name and with the consent of the deceased, sued out a writ of error in the name of the heirs, gave bond for the prosecution of the writ and for costs, a motion to dismiss the writ will not be entertained, although the heirs of the deceased authorize the motion to dismiss. Kellogg v. Forsyth, 24 How. 186.
15. It appears to the court that the attorney of the deceased defendant is a bona fide claimant of the land, and prosecuting the writ of error in good faith. Ib.
16. The motion to dismiss the writ of error is therefore overruled. Ib.
17. (Dec., 1867.) Where, pending a writ of error to this court, subsequently dismissed, the defendant in error dies,
and the other side wishes to take a new writ, application should be made to the court below for the purpose of reviving the suit in the name of the representatives of the deceased. A writ of error can then regularly issue. A motion in this court to revive the writ by suggesting the death and substituting the representatives as parties to the record is not regular. McClane v. Boon, 6 Wall. 214.
18. If the court below should refuse an application such as that above contemplated, in the circumstances mentioned, then the writ may, from necessity, issue in the name of the representatives, in the usual way, serving on them the citation to appear at the next term. 16.
Where there is no appearance for the plaintiff when the case is called for trial, the defendant may have the plaintiff called and dismiss the writ of error, or may open the record and pray for an affirmance.
RULE 16. No APPEARANCE OF PLAINTIFF. –
DECISIONS 1, 2.
1. (Dec., 1865.) Where the counsel of a plaintiff in error withdraw their appearance, the defendant in error, under the sixteenth rule, has the right either to have the plaintiff called and the suit dismissed, or to open the record and pray an affirmance. McGuire v. The Commonwealth, 3 Wall. 382.
2. (Oct., 1877.) When a cause, reached in its regular order upon the docket, has, under Rule 16, been dismissed by reason of the appellant's non-appearance, for which no just cause existed, it will not, over the objection of the appellee, be reinstated. Hurley v. Jones, 7 Otto, 318.
Where the defendant fails to appear when the cause shall be called for trial, the court may proceed to hear an argument on the part of the plaintiff, and to give judgment according to the right of the
Rule 18. — No Appearance of either Party.
When a case is reached in the regular call of the docket, and no appearance is entered for either party, the case shall be dismissed at the cost of the plaintiff.
RULE 18. No APPEARANCE OF EITHER PARTY.
1. (Feb., 1809.) If the counsel on neither side appear when the cause is called, the writ of error will be dismissed. Rodford v. Craig, 5 Cranch, 289.
Rule 19. — Neither Party Ready at Second Term.
When a case is called for argument at two successive terms, and upon the call at the second term neither party is prepared to argue it, it shall be dismissed at the cost of the plaintiff, unless sufficient cause is shown for further postponement.
NEITHER PARTY READY AT SECOND TERM.
DECISIONS 1, 2.
1. (Oct., 1877.) In view of the crowded state of the docket, the court announces its determination to enforce rigidly the rule requiring causes to be ready for hearing when they are reached. Hurley v. Jones, 7 Otto, 318.
2. (Oct., 1878.) The court announces its determination to enforce rigidly the rules requiring causes to be ready for hearing when they are reached. Alvord v. United States, 9 Otto, 593.
Rule 20. — Printed Arguments.
1. In all cases brought here on appeal, writ of error, or otherwise, the court will receive printed arguments without regard to number of the case on the docket, if the counsel on both sides shall choose so to submit the same, within the first ninety days of the term ; but twenty copies of the arguments, signed by attorneys or counselors of this court, must be first filed; ten of these copies for the court, two for the reporter, three to be retained by the clerk, and the residue for counsel.
2. When a case is reached in the regular call of the docket, and a printed argument shall be filed for one or both parties, the case shall stand on the same footing as if there were an appearance by counsel.
3. When a case is taken up for trial upon the regular call of the docket, and argued orally in behalf of only one of the parties, no printed argument will be received, unless it is filed before the oral argument begins, and the court will proceed to consider and decide the case upon the ex parte argument.
4. No brief or argument will be received, either through the clerk or otherwise, after a case has been argued or submitted, except upon leave granted in open court after notice to opposing counsel.
RULE 20. PRINTED ARGUMENTS. - DECISION 1.
1. (Jan., 1834.) A pamphlet has been sent to the judges touching the questions in controversy in this cause. The court desire it to be understood that the practice of the court is not to receive or examine such papers, unless they have been presented in court and shown to the opposite counsel. Mitchell v. United States, 8 Pet. 307.
Sec. 1. Only two counsel shall be heard for each party on the argument of a cause.
Sec. 2. Two hours on each side shall be allowed to the
argument, and no more, without special leave of the court, granted before the argument begins. The time thus allowed may be apportioned between the counsel on the same side, at their discretion; provided, always, that a fair opening of the case shall be made by the party having the opening and closing arguments.
Sec. 3. The counsel for the plaintiff in error or appellant shall file with the clerk of the court, at least six days before the case is called for argument, twenty copies of a printed brief, one of which shall, on application, be furnished to each of the counsel engaged upon the opposite side.
Sec. 4. This brief shall contain, in the order here stated,
I. A concise abstract, or statement of the case, presenting succinctly the questions involved and the manner in which they are raised.
II. An assignment of the errors relied upon, which, in cases brought up by writ of error, shall set out separately and specifically each error asserted and intended to be urged ; and in cases brought up by appeal the assignment shall state, as specifically as may be, in what the decree is alleged to be erroneous. If error is assigned to a ruling upon the report of a master, the specification shall state the exception to the report and the action of the court upon it.
III. A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the pages of the record and the authorities relied upon in support of each point. When a statute of a state is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length.
Sec. 5. When the error alleged is to the charge of the court, the specification shall set out the part referred to totidem verbis, whether it be instructions given or instructions refused.