Sidor som bilder
PDF
ePub

by the statute. Unless further time be al. | the citation in error shall have been served lowed by special order of the court in the ten days before such submission day. If particular case, the certified copy must be not so serred, then the case shall be anb. filed in this court within ten days from ject to submission on the first regular the granting of the application. If the submission day, which falls ten days after copy be not so filed, the application will service of the citation. be dismissed by the court of its own mo- 9. Motions in a case not submitted will tion.

be heard on the day next preceding the 6. When service of the citation in error submission day for such case; and the ad. shall have been had, and the original verse party will be required to take no. transcripts and briefs sent up to this tice of all motions filed in the cause on or court by the court of civil appeals, it shall before the Tuesday immediately preceding be the duty of the clerk to put the case such submission day. Notice shall be upon the trial docket, and to mark upon given of all motions filed after that time. the file the number of the case as shown 10. The clerk shall keep a motion docket, upon such docket. Cases upon the trial upon which shall be entered every motion docket shall be numbered consecutively as soon as filed. The motions shall be in the order in which they are entered numbered consecutively upon the docket, thereon.

and its number shall be placed on the mo. 7. Causes in this court will be regularly tion itself. submitted on Thursday of each week, 11. A party who elects to file in this court though a case may be set down for sub- a brief, in addition to the brief filed in the mission opon another day by the per- court of civil appeals, shall comply as mission or direction of the court.

near as may be with the rules prescribed 8. A case shall stand for submission mp- for briefing causes in the latter court, and on the first regular day for the submis. shall confine his briefs to the points raised sion of causes, coming after the expiration in the motion for a rehearing and preof thirty days from the day on which the sented in the application for a writ of writ of error sball have issued, provided error.

Rules for the Courts of Civil Appeals.

TRANSCRIPTS.

district clerk. If the indorsement shows

that it was applied for by one party and 1. The clerks of the courts of civil ap- delivered to the other, it must be shown peals shall receive the transcripts deliv. by the indorsement of the clerk, or other. ered and sent to them, and receipt for the wise, to entitle it to be properly tiled as same, if required, but they shall not be re- the transcript of the party to whom it quired to take a transcript out of the was delivered, and that it was delivered post office, or an express office, unless to one by the consent of the other, as the postage or charges thereon be fully each party has the sole right to the tranpaid.

script which he applied for to be made 2. The clerk shall indorse his filing upon out for him; and if it is so filed, without the transcript, of the date of its reception, that fact being shown, the court may if it comes to his hands properly in- strike the case from the docket as improp. dorsed, showing who applied for it, and erly filed, upon its own inspection, or upto whom it was delivered, if presented un motion of the party to whom the within vinety days from the time the ap- transcript belonged. peal or writ of error is perfected; but if it 4. If both parties file transcripts within comes to his hands aiter the said date, or the proper time,--which they may do, not so properly indorsed, he shall, with- and that of the appellant or plaintiff in out filing it, make a meinorandum upon it error is properly made and indorsed, it of the date of its reception, and keep it shall be regarded by the court as the tranin bis office, subject to the order of the script of the record in the case, and the person who sent it, or to the disposition court will grant the appellee or defen(lant of the court. Said transcript shall not be in error leave to withdraw that filed by filed until a satisfactory showing has been him for his own use. made to the court for its not being prop- 5. If but one party file bis transcript in erly indorsed, or for not being received by proper time, that shall be regarded as the the clerk in proper time; and upon this transcript of the record in the case. being done it may be ordered by the court 6. From the time when the transcript, to be filed, upon such terms as may be properly made out and indorsed, is filed, deemed proper, having respect to the it will cease to belong to either party, rights of the opposite party.

but will become a record of the court, sub3. Either party may tile the transcript ject to its control and disposition. for which he has applied to the district 7. Transcripts in appeals from jurgclerk, and which has been delivered to ments in proceedings in quo warranto hiin; both of which facts must appear on shall be filed in the court of civil appeals tbe transcript by the indorsement of the within twenty days after appeal is der. fected, and the first Tuesday following ty may be filed, and in like manner insuch twentieth day shall be the day for dorsed and noted in the motion docket, filing motions in such cases. error.

and the name of the attorney therein on

tered. MOTIONS.

TAE DOCKET. 8. All motions relating to informalities in the manner of bringing a case in to the

16. The clerk, before the regular call of court shall be filed and entered by the

the trial docket, shall have the tile number clerk in the motion docket, on or before indorsed on each transcript. Where briefs the Tuesday next before the day on which

have been filed in a case, the name of the such case is subject to be called for sub. attorney or attorneys signed to the brief mission; otherwise the ground of objec

shall be entered by the clerk on the tria) tion shall be considered as waived, if it docket, opposite the name of the approcan be waived by the party. Such filing priate party, and that shall indicate to and doeketing will be sufficient notice of

the court who appears for such party in the motion.

the cause, 9. Motions to dismiss for want of juris

17. The clerk shall not make such entry diction to try thecase, and for such defects

of an attorney's paine until he shall have as defeat the jurisdiction in the particular

filed his briefs; but he shall permit any case, and cannot be waived, shall also be attorney who desires to make an appearmade, filed, and docketed at said time,

ance in the case before he files his briefs, which filing and docketing shall be notice or without filing them at all, to place his of tbe wotion: provided, however, if made nanie, in his own handwriting, upon the afterwards, they may be entertained by trial docket, opposite the name of the parthe court, aiter such notice to the oppo

ty for whom he appears, and that shall site party as the court may deem proper

be regarded by the court as having whatto have been given under the circuiustan

ever effect is given to the mere appearance ces.

of a party to a case in court without brief 10. Motions, made either to sustain or

filed. defeat the jurisdiction of the court, de

18. The court will not enter upon the pendent on facts not apparent in the rec

docket the names of attorneys in a case, ord, and not ex officio known to the court,

but counsel desiring their names entered: must be supported by affidavits or other

shall see that it is done under the foregosatisfactory evidence.

ing rule before the case is called. 11. Motions for certiorari to perfect the 19. Counsel desiring to call the attenrecord shall also be made in the time re

tion of the court to a caso on the motion quired in rule &. They must be accompa

docket or trial docket, not then called in nied with a sworn statement showing a

its regular order, must, before doing so, necessity for the same, unless the record provide himself with the number of the shows it, the filing and docketing of which

case on the docket. shall be notice of the same. If made afterwards, they will be entertained only upon

CALLING THE DUCKET. sucn terms and upon such notice as the

20. The trial docket will be called in regcourt may deem proper. Unless reasons

ular order, according to the filing of the appear to vary the rule, the party apply

cases as they stand thereon, commencing ing, in all cases, will be taxed with the

with the first of those that have not been costs.

previously submitted; but the court shall 12. Mutions made to postpone the case

not be required to take the submission of to a future day, or to continue it until the

a case until the business on hand will Dext term, unless consented to by the opposite party, shall be supported by suffi- submission has been taken.

admit of a prompt disposition after the cient cause, verified by affidavit, unless

21. Upon the call of the trial docket for such sufficient cause is apparent to the

the submission of cases, either party may court.

submit a cause, if it appears to have been 13. The motion docket will be called on

properly prepared for submission on his Wednesday of each week, when the mo

part, unless, for good cause, the court tions filed and docketed according to the preceding rules will be in order for sub

shall postpone the hearing to a further

day, or by agreement of counsel to a mission, at the instance of either party; future day of the term, which will not be and is not submitted then may be submit

done so as to interfere with the business ted at the regular call of the trial docket,

of the court. This rule is subject to exunless sooner called up and disposed of. 14. The arguments of counsel upon all

ceptional cases given a preference to under

some law or rule of the court, and to the motions shall be confined to a brief ex

action of the court on motions for the postplanation of the grounds in the motion,

ponement and continuance of causes. so as to make them intelligible to the court, with a reference to the statutes and

PREPARING A CAL'SE FOR SUBMISSION, decisions relating thereto, unless further argument is requested by the court.

22. A cause will be properly prepared for 15. The clerk, upon filing and docketing submission only when a transcript of the a motion, will indorse upon the motion record exhibits a cause prepared for apits number, and the number of the case to peal in accordance with the rules prewhich it belongs, which shall also be en- scribed for the government of the district tered in the motion docket, together with and county courts, and tiled in the court the attorney's name who makes the mo- under the rules, with briefs of one or of tion. Any opposition in the way of an- both the parties, in accordance with the Bwer to said motion by the opposite par rules for the government of the court.

23. Said record should contain an ag. fundamental errors of law an are apparent signment of errors as required by the upon the record, each ground of error statute. If it does not, the court will not being separately presented under the propconsider any error but one of law that er assignment; and each assigoment not may be apparent upon the record, if the 80 copied and accompanied with its ap. judgment is one that conld legally have propriate propositions and statements been rendered in the lower court and shall be regarded as abandoned. affirmed in the appellate court.

30. The appellant or plaintiff in error, 24. The assignment of errors must dis- in preparing his brief, shall make a gentinctly specify the grounds of error relied eral and succinct statement of tbe nature on, and a ground of error not distinctly and result of the suit, as an introduction, specified, in reference to that which is which may be omitted in an agreed case shown in the record, or not specified at under the statute, and then each point unall, shall be considered as waived, unless der each one of the assignments relied on it be so fundamental as that the court shall be stated in the shape of a proposiwould act upon it without an assignment tion, unless the assignment is itself in the of errors, as mentioned in rule 23.

shape of a proposition to be maintained, 25. To be a distinct specification of er- and then it will be sufficient to copy the ror, it must point out that part of the assignment. proceedings contained in the record in 31. To euch one of said propositions which the error is complained of, iu a par- there shall be subjoined a brief statement, ticular manner, so as to identify it, wheth- in substance, of such proceedings, or part er it be the rulings of the court upon a thereof, contained in the record as will be motion, or upon any particular part of necessary and sufficient to explain and the pleadings, or upon the admission or support the proposition, with a reference the rejection of evidence, or upon any oth- to the pages of the record. This stateer matter relating to the cause or its tri. ment must be made faithfully, in reference al. or the portion of the charge given or to the whole of that which is in the record refused, the fact or facts in issue which having a bearing upon said proposition, the evidence was incornpetent or insuff- upon the professional responsibility of the cient to prove, the insufficiency of the counsel who makes it, and without interverdict or finding of the jury, if special, mixing with it arguments, reasons, conand the particular matter in which the clusions, or inferences. But an argument judgment" is erroneous or illegal, with bearing only on the propositions submit. such reasonable certainty as may be prac- ted may follow each statement. ticable, in a succinct and clear statement, 32. The propositions, if more than one considering the matter referred to.

under one ground of the assignment, shall 26. Assigoments of error, which are ex- refer to it, and be stated separately. pressed only in such general terms as that 33. In a proposition relating to the error the court erred in its rulings upon the of the court in overruling a inotion for a pleadings, when there are more than one, new trial or to arrest the judgment, in or in its charge, when there are a number which there are several grounds, the par. of charges, or the verdict is contrary to ticular ground or grounds should be re19w, or to the charge of the court, and the ferrer to with the appropriate explana. like, without referring to and identifying tion; and if the same grounds of error the proceeding, will not be regarded by have been presented in other propositions the court as a compliance with the stat. it will be unnecessary to repeat them. ute requiring the grounds to be distinctly 34. In propositions relating to fundaspecified, and will be considered as mental errors of law apparent upon the waiver of errors, the same as if no assign: record, enough must be stated to make ment of errors had been attempted to be the error of law which pervades the case filed.

obviously apparent, without requiring the 27. In cases submitted to the judge court to search through the record to find upon the law and facts, the assignments errors, which they will not do unless propof error shall be governed by the same erly pointed out, if the judgment is one rules as in other cases, and the party de- which the trial court is competent to ren. siring to appeal should, as a predicate for der in such a case. specific assignments of errors, request the 33. When the assignments of error are judge to state in writing the conclusions numerous, counsel should present proposi. of fact found by him separately from the tions on those whicb are most important conclusions vi law. And in agreed cases in the determination of the case, waiving under the statute the foregoing rules as those that cannot control the result of the to assignments of error shall be complied decision of this court,-among which may with as far as practicable.

be (assed those involving questions of 28. There will be no assignment of errors fact wherein the evidence is so preponderallowed in the appellate court when none ating or so conflicting as that the court, has been fled in the lower court, unless by under well-established rules of decision, conseot of partics.

would not set aside the verdict of the jury

or judgment of the court upon them. BRIEFS.

36. There should be annexed to each 29. The appellant or plaintiff in error, proposition, with its statement, and at in order to prepare properly a case for the end of it, a reference simply to the au. submission when called, shall have filed a thorities relied on, if any, in support of it, brief of the points relied on, in accord- | in the following order, to wit: The stat. ance with and confined to the distinct utes and decisions of this state; tbe stat. specifications of error, which assignments utes and decisions of the United States, if shall be copied in the brief, and to such they are applicable to the case; elementary

a

[ocr errors][ocr errors][ocr errors][ocr errors]

authorities; other decisions in the Amer- | quiesced in. To each of his said objections ican and English courts. In citing deci. or propositions may be annexed his ausious, thuse most nearly in point should thorities, cited in the order indicated for bu cited first, and they should not, usually the brief of appellant or plaintiff in error. at least, he so numerous as to require a *42. When appellant or plaintiff in error waste of time in their examination.

bas failed to prepare the case for submis37. The brief of the parties, framed in ac- sion, by the omission of what is required cordance with these rules, must be signed after bood or affidavit filed for appeal and by the party or his counsel; and if by for writ of error with citation served, the Counsel it shall appear for and on behalf appellee or defendant in error, before the of what party or parties, by name, it is call of the case, may file in the appellate signed; and the copies thereof filed in the court a brief, in the manner required of appella to court shall be plainly written or the appellant or plaintiff in error,-except printed, and if it covers more than eight that his propositions will be shaped so as pages of foolscap they shall be printed. to show the correctness of the judgment,

38. Such brief may be amended by a cita. -wbich the court may, in its discretion, retion of additional authorities to the re- gard as a correct presentation of the case, spective points or propositions made in without examining the record further it, which must be filed, and notice of it than to see that the judgment is one that given to thecondsel for the opposite party, can be affirmed upon tie view of the caso if in attendance, one day before the case is as presented by appellee or defendant in called. No other amendment to the brief

The appellee or defendant in error sball be allowed by the court, unless it is shall be entitled to the custody of the or can be done without injustice or unrea. transcript after it is filed in the appellate sonable inconvenience being thereby im- court, for the purpose of preparing bis posed on the other party.

brief. 39. The failure of appellant or plaintiff 43. The appellee or defendant in error in error to file ad assignment of errors and may submit the record, upon a suggestion briefs in the lower court, and in the appel- of delay, upon making a brief statement late court, in the time and in the manner of the character of the suit, the proceedprescribed by law and by the rules, shall ings therein, and the judgment rendered, be ground for dismissing the appeal or which will be required in every case of writ of error for want of prosecation, by such submission when appellant or plainmotion made by appellee or defendant in tiff in error has fileil no brief. If this is error, as other motions under rule 8, un. done in a case properly prepared for subless good cause is shown why it was not mission by appellant or plaintiff in error, done in the time and manner as prescribed, it will be considered an acquiescence in and that they bave been filed at such time the statement of appellant or plaintiff in and under such circumstances as that the error, in nis brief, as to the coutents of appellee or defendant in error has reason- the record, and as merely a denial of the leably not suffered any material injury in gal consequences contended for by the apthe defense of the case in the appellate pellant or plaintiff in error, unless the apcourt. In deciding said motion, the court | pelleo or defendant in error shall also file will give such direction to the case as will a brief, as heretofore provided, which he cause the least inconvenience or damage may do. If the appellant or plaintiff in erfrom such failure, so far as practicable. ror hus oot prepared the case for submis

40. When it shall be found that the rules sion, the record will be examined sutti. prescribed for the preparation of a case ciently to ascertain that it is or is not for submission have been fully complied properly a delay case, and if found to be with big the appellant or plaintiff in error, a plain case of delay it will be acted on the court will, in its discretion, regard as such; but if not, it will be reversed, or this brief as a proper presentation of the referred back for a brief, or brief and arcase, without an examination of the rec- gument, on one or both sides, as may be ord as contained in the transcript, and directed. In deciding under this rule, may found its decision thereon), unless the where the case has not been prepared for appellee or defendant in error shall, by submission by the appellant or plaintiff in the time of calling of the case, file in the error, the court will be required to look appellate court copies of his brief, to be only to the substantial merits as they there kept with the transcript, containing may appear in the record. his objections, succinctly and definitely, to 44. When affirmance is asked upon certhe grounds of error as presented in the titicate filed, there need be nothing more propositions of appellant or plaintiff in than a request for affirinance, signed by errur in his brief, taking up each of them the party or his counsel. It shall not be in order, and stating such other matters submitted sooner than one week after becontained in the record, in the mode pre. ing tiled, if the court should be in session scribed for appellant and plaintiff in error, that length of time. The appellee or de. as may sustain his objection to eaclı; to fendant in error may be heard on a mo. which may be added propositions of his tion to dismiss the certificate, or on a moown, supported by like statements of tion to file the transcript of the record, or what is in the record, so as to present on a motion to set aside the judgment bis view of the case, citing the proceedings rendered, as in other cases of rehearing. in the transcript, with the pages, when practicable, to which he refers in his state

DEFECTIVE BRIEF. menta.

45. In all cases wherein the brief 41. Whatever of the statements of the briefs are found insufficient, either in a appellant or plaintiff in error in his brief proper preseutation of the facts or prois not contested will be considered as ac- ceedings in the case, or in the refereuce to

or

the authorities, so as to enable the court will be heard, except upon leave of the to decide the case, the court may set aside court. the subinission, and refer it back, with 51. If counsel for but one party has filed such orders for postponement, filing of briefs, an argument by him may be albriefs, reference to authorities, hy one or lowed, conformably to the preceding rules both parties, and reargument, written or as nearly as practicable, under the direcoral, as may be deemed proper. 11, how- tion of the court. ever, one party has fully complied with 52. Counsel who argue a case at the bar the rules, and has filed a satisfactory brief will be expected to be able to answer ques. that will enable the court to decide the tions propounded by the members of the case, and the other party is in default, and court, relating to the matters contained has not filed a satisfactory brief in accord- in the record, and to the laws or authoriance with the rules, the court may, in its ties cited in the argument. discretion, disregard the latter party's 53. Should it be apparent, during the brief, as if not filed in the case, and act up- progress of the trial, or afterwards, that on that alone which bas been properly the case has not been properly preparedi, tiled in accordance with the rules.

as shown in the transcript, or properly

presented in the brief or briefs, or that the AGREEMENTS OF COUNSEL.

law and authorities have not been properly

cited, which will enable thecourt to decide 46. All agreements of parties or their

the case, it may decline to receive the subcounsel relating either to the merits or conduct of the case in the court or in ref

mission, or, if received, may set it aside.

and make such orders as may be necessary erence to a waiver of any of the require

to secure a inore satisfactory submission mients prescribed by the rules, looking to

of the case. the proper preparation of an appeal or writ of error for a submission, shall be 54. When a case has been properly pre. in writing, signed by the parties or their

pared for subinission, and a satisfactory counsel, and filed with the transcript or

oral argument has been made, the court be contained in it, and, to the extent that practicable, at the next succeeding session

will promptly announce its judgment, if such agreement may vary the regular or

of the court, and, when deemed recessary. der of proceeding, shall be subject to such

deliver a written opinion; is not then, at orders of the court as may be necessary to

some time during the term of the court. secure a proper preparation for a submis. sion of the case.

CUSTODY OF TRANSCRIPT.
ARGUMENTS OF COUNSEL.

55. Neither the transcript nor any of the 47. When the case is properly prepared papers in a case shall be withdrawn from for submission, any party who was filed the custody of the clerk, nor taken from briefs in accordance with the rules pre- bis office or the court room, without a rescribed therefor may, upon the call of the ceipt let therefor. case for submission, submit an argument 56. Cases, aiter submission, are no longto the court, either oral or plainly writ- er under the control of the attorneys, ten or printed, which, if written or print- and the clerk will not let the transcripts ed, inay be left on file with the transcript, of such cases go out of his office, except copies of which need not be furnished un- on the order of one of the justices of the less printed.

court. 48. The arguments must be upon the dis- 57. Original papers sent up with the puted points, whether of law or fact, in transiript by order of the trial court for support of the propositions relied on, on the inspection of the appellate court will be one side, and objections and counter prop- retained in the vffice, and will not be alositions on the other, and it must be con- lowed to go out of the custody of the fined to them, a voiding any reference or clerk, except by order of one of the juscomment upon positions taken in the trial tices of the court, which order must be court, or to other extraneous matters not tiled with the papers of the cause. involved in or pertaining to that which is 58. The clerk shall furnish the parties found in the record.

and counsel with an opportunity, when 49. In referring to statutes, that part reasonably applieci to for that purpose directly bearing upon or relevant to the to inspect the records, judgments, papers, position should be read at the bar, or opinions, books, and dockets in bis office stated in the written or printed argu- in which they may be interested; but he ments; and in citing elementary books or shall not be required to permit copies decisions of courts, the principle should thereof to be taken without bis consent. be stated, or so much sbould be read or He shall, upon tender of reasonable comstated, as bears directly on, or tends to pensation, give certified copies of the recmaintain, the proposition for which it is ordis of his office. cited in the brief.

59. The clerk shall be responsible for ev. 50. After the case has been presented to ery transcript or other paper in a cause the court by such explanation as may be that is missing from his office, unless he necessary, each side may be allowed an can produce the rereipt of an attorney for hour in argument at the bar, with twenty the same, or otherwise show, by satisfac. minutes more in conclusion by the appel | tory evidence, that some one took it from lant; and, aiter being so presented, if the his custody or from the court room with. magnitude or importance of the case or out his conseut, or that said transcript the difficulty of the question seems to re. had passed into the hands of one of the quire it, a louger time may be allowed. | justices of the court, and had not been reNot more than two counsel on each side turned to his custody.

« FöregåendeFortsätt »