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CASES ARGUED AND DETERMINED
CIRCUIT COURTS OF APPEALS AND CIRCUIT
AMENDMENTS TO RULES
UNITED STATES CIRCUIT COURT OF APPEALS.
At a session of the United States circuit court of appeals for the First circuit, held in the city of Boston, in the district of Massachusetts, on the twenty-third day of February, Anno Domini eighteen hundred and ninety-four.
PRESENT: HON. LEBARON B. COLT, CIRCUIT JUDGE.
HON. WILLIAM L. PUTNAM, CIRCUIT Judge.
Ordered, the rules of this court are amended as follows:
First: To the sixth paragraph of rule 14 is added:
The testimony in such record shall embrace the viva voce proof in the district court, if the same, or the substance thereof, has been reduced to writing with the approval of its judge. The reasonable cost of so reducing the same to writing may be taxed as a part of the cost of the record, except so far as allowed as costs in the district court.
Second: New paragraphs are added to rule 14 as follows:
7. Further proof in instance causes in admiralty shall include only that which could not with diligence have been had at the trial below, or which was there rejected, or was omitted through misapprehension, provided the evidence be accompanied with a certificate of counsel showing reasonable excuse for the misapprehension. Except by order of the court first obtained, merely cumulative proofs shall not be so taken; but for this purpose the evidence of witnesses who had different duties, interests, or opportunities of observation, will not ordinarily be held cumulative in cases of collision or other maritime tort.
8. Such further proof may be taken after the appeal is allowed, in the manner provided by law for depositions de bene esse, or by an examiner appointed by any circuit or district judge, or selected by the parties, or upon interrogatories and commissions as provided in rule 44 of the circuit courts of this circuit, mutatis mutandis. It must be taken and filed forthwith after it is obtainable, but it cannot, except by order of the court, be taken or filed within thirty days before any session at which the cause may be heard as provided in paragraph 2 of rule 17, nor thereafterwards until the cause has been postponed to the next term or session.
9. Objections to further proof shall be filed with the magistrate and returned with the evidence. Within seven days after the evidence is taken, the party so objecting may file in print a motion to suppress the same, with a copy of the objections and a brief. The other party may within seven days thereafter file in print a counter-statement and brief. The objections and counter-statement, so far as they contain matters of fact dehors the record, 59 F.
shall be verified by affidavit. The court will consider the objections in advance of the trial, or in connection therewith, as it may in each case determine, and without oral argument, and will order suppressed evidence not rightfully taken. The party taking the evidence so suppressed shall pay the costs arising therefrom, including the printing thereof.
10. Nothing herein shall exclude applications for leave to take further proof, or objections thereto, in advance of the taking thereof, or objections touching the formalities of taking it; but the latter must be brought to the attention of the court forth with after the evidence is filed.
One term of this court shall be held annually on the Tuesday after the first Monday of October, and adjourned sessions on the Tuesday after the first Monday of each other month in the year, except August and September.
All sessions of the court shall be held at Cincinnati, unless otherwise especially ordered by the court.
At the October, February, and May sessions of the court, hereafter referred to as "calendar sessions," there shall be a regular and peremptory call of a calendar containing all the cases upon the docket which under the rules should then be ready for hearing.
At other than calendar sessions, the court will hear any case upon the docket in which the record has been printed and briefs for both parties filed, provided that there has been also filed in the clerk's office, on the Monday preceding the first day of such session, the written consent of counsel for both parties that such hearing may be had.
At other than calendar sessions, the court will also hear, upon application of appellant, an appeal from any interlocutory order granting a preliminary injunction, provided counsel for appellant shall have served upon counsel for appellee the printed record and the printed brief for appellant at least six days before the hearing.
At other than calendar sessions, the court will also hear all motions and miscellaneous business, and will announce opinions.
Promulgated February 23, 1894.
Rule 23 is amended so as to read as follows:
1. The clerk shall supervise the printing of all records, and, upon the docketing of a case, shall forthwith cause an estimate to be made of the cost of printing the record, and his fee for preparing it for the printer, and for supervising the printing thereof, and shall at once notify the attorney for the plaintiff in error or appellant of the amount of such estimate, which shall be paid to the clerk within ten days after such notice.. If not so paid, the writ of error or appeal may be dismissed upon the motion of the opposite party, or by the court of its own motion.
2. After the payment to him of such estimate the clerk shall cause at least twenty-five copies of the record to be printed forthwith, and shall fur
nish to each of the respective parties three copies thereof, and take a receipt therefor.
3. Parties may agree, by written stipulation filed with or prior to the filing of the record, that parts only of the record shall be printed, and the case may be heard on the parts so printed; but the court may direct the printing of other parts of the record.
4. If the cost of printing and supervision shall be less than the amount estimated and paid, the clerk shall refund the difference to the party paying the same. If the cost is greater than the estimate, the amount of such excess shall be paid to the clerk before he shail file the printed record or deliver any copies thereof.
5. In case of reversal, affirmance, or dismissai, with costs, the amount paid for printing and supervision shall be taxed against the party against whom the costs are given, and shall be inserted in the mandate or other proper process.
6. In any case where the case shall have been printed in the court below, either circuit judge may, on the written application of the plaintiff in error or appellant, order that such printed record, if properly indexed, may be used in place of the printing herein before provided for.
7. The clerk of this court shall receive proposals for printing, which shall be submitted to the senior circuit judge, who may, in his discretion, award such printing to the lowest and best bidder, and all such printing shall be done by the person to whom the same is so awarded; and, when a case shall be heard upon a record printed in a court below, the cost for printing shall be taxed on the basis of such bid for printing, except when the parties otherwise agree.
8. The fees of the clerk of this court for supervision shall be the same as those of the clerk of the supreme court for the same services, which are at present designated by supreme court rule 24, as follows:
For preparing the record, or a transcript thereof, for the printer, indexing the same, supervising the printing, and distributing the printed copies to the judges, the reporters, and the parties or their counsel, fifteen cents per folio.
Promulgated January 2, 1894.
Rule 26 is amended to read as follows:
FORM OF PRINTED RECORDS, ARGUMENTS, AND BRIEFS.
1. All records shall be of a uniform size, printed in small pica type, 24 pica ems to a line, 48 lines to a page, solid, with an index, and a suitable cover containing the title of the court and cause, the court from which the case is brought to this court, and the number of the case; size of pages to be 94x64 inches, except that in patent cases the size of the pages shall be 103x7g inches; that is to say, large enough to bind in copies of patent office drawings and specifications without folding.
2. All arguments and briefs of attorneys shall be printed, and conform as near as practicable to the size of the printed record.
Promulgated January 2, 1894.