It is the duty of the plaintiff in error or appellant to docket the cause and file the record thereof with the clerk of the appellate court before the return-day, which is usually within thirty days after the signature of the citation,30 except in the Supreme Court, on appeals or writs of error from California, Oregon, Washington, New Mexico, Utah, Nevada, Arizona, Montana, Idaho, Wyoming, North Dakota, South Dakota, Alaska, Hawaii and Porto Rico when the period of thirty days is extended to sixty days, and from the Philippine Islands when the period is one hundred and twenty days.31 Upon the due filing of the transcript and assignment of errors, together with the writ of error, if one has been duly issued, the court of review acquires jurisdiction of the case.32 If the plaintiff in error or appellant fails to docket the case and file the record in time, he may for good cause shown obtain from the judge who signed the citation or a judge of the appellate court an order enlarging his time either before or after its expiration, at least before the term succeeding the return-day has expired.33 This order must U. S. 639, 44 L. ed. 305; Burnham v. N. Chicago St. Ry. Co., C. C. A., 87 Fed. 168. The clerk cannot in this manner correct an erroneous statement in the transcript, Hudgins v. Kemp, 18 How. 530, 15 L. ed. 511. The record may be amended in the appellate court by consent. Fletcher v. Peck, 6 Cranch, 87, 3 L. ed. 162; and in a case where it was evident from an inspection of the transcript that it contained a clerical error, the Supreme Court permitted it to be corrected by amendment, on the production of the certificate of the clerk below as to the error, without a certiorari. Woodward v. Brown, 13 Pet. 1, 10 L. ed. 31; Stitt v. Huidekopers, 17 Wall. 384, 21 L. ed. 644. See Kennedy v. Bank of Georgia, 8 How. 586, 12 L. ed. 1209; Shaw v. Railroad Co., 101 U. S. 557, 25 L. ed. 892. See Dist. of Columbia V. Brooke, 214 U. S. 138, 53 L. ed. 941. Defects in a transcript cannot be supplied by reference to the record in another appeal. South Carolina v. Wesley, 155 U. S. 542, 39 L. ed. 254. 30 S. C. Rules 8 and 9; C. C. A. Rule 14, supra, §§ 699, 700a. 31 S. C. Rule 9, as amended, 200 U. S. 626. 32 Martin v. Burford, C. C A., 176 Fed. 554. 33 S. C. Rule 9; C. C. A. Rule 16, infra, § 705. A mandamus or other appropriate order may issue to compel the clerk to certify to a transcript of the record; U. S. v. Booth, 18 How. 476, 15 L. ed. 464; U. S. v. Gomez, 3 Wall. 752, 18 L. ed. 212. But not, it has been held, to compel him to transmit a particular paper. Starcke v. Klein, C. C. A., 62 Fed. 502; but a failure to move for a mandamus will not necessarily be considered be filed with the clerk of the appellate court.34 If the plaintiff in error or appellant fails to comply with this rule, the defendant in error or appellee may have the case docketed and dismissed upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the case, and certifying that such writ of error or appeal was duly sued out and allowed.35 After such dismissal, the plaintiff in error or appellant can only by special leave of the court docket the case and file the record.86 "No certiorari for diminution of the record will be hereafter awarded in any case, unless a motion therefor shall be made in writing, and the facts on which the same is founded shall, if not admitted by the other party, be verified by affidavit. And all motions for certiorari must be made at the first term of the entry of the case; otherwise, the same will not be granted, unless upon special cause shown to the court, accounting satisfactorily for the delay." 37 A case which is sought to be reviewed both by appeal and by writ of error need not be docketed.38 The defendant in error or appellee may, if he chooses, docket the cause and file the record. If the defendant in error files the transcript or dockets the cause before the time has expired, and subsequently the plaintiff in error files the transcript and dockets the cause in due time, the case on the plaintiff's docketing will stand and on the defendant's docketing be dismissed.39 The plaintiff in error or appellant must on docketing a cause and filing the record enter into an undertaking to the clerk, with surety to his satisfaction, for the wise satisfy him in that behalf.40 laches by the plaintiff in error; U. S. v. Gomez, 3 Wall. 752, 18 L. ed. 212. 34 S. C. Rule 9; C. C. A. Rule 16. In the Second Circuit "The order of enlargement to be filed with the clerk of the District Court and to be transmitted by him to this court with the transcript." (Amendment of March 13, 1916). 35 Ibid. 36 Ibid. 37 S. C. Rule 14; C. C. A. Rule 18. payment of his fees, or otherUpon the filing of a transcript 38 Hurst v. Hollingsworth, 94 U. S. 111, 24 L. ed. 31; Plymouth G. M. Co. v. Amador & S. C. Co., 118 U. S. 264, 30 L. ed. 232. 39 Hartshorn v. Day, 18 How. 28, 15 L. ed. 272; Davis v. Corbin, 113 U. S. 687, 28 L. ed. 1149. 40 S. C. Rule 10. Where the transcript had been filed in time, but through inadvertence a fee bond had not been given to the clerk, the appellant was permitted to docket the cause after the term, in a case where of the record, the appearance of the counsel for the party docketing the cause should be entered. It has been held that a writ of error or appeal may be dismissed because no assignment of error is sent up with the return.42 It seems that in a proper case and under proper restrictions, pending an application for a rehearing below, the appellate court may remit the record at the request of the court below,43 but not, it seems, at the request of the parties.4 The Supreme Court allowed a transcript to be returned to the court below for correction, by the addition of the clerk's signature, after the time to take a new appeal had expired.45 After the dismissal of a writ of error on the motion of the plaintiff in error, the court refused to allow the transcript to be withdrawn.46 After the transcript has been filed, the case is transferred to the court of review, and thenceforth the case should be entitled at common law by the names of the plaintiffs in error against the defendants in error, and in equity by the names of the appellants against the respondents, without regard to the respective positions of the parties below. § 705. Motions to dismiss appeals and writs of error. In general. Motions to dismiss writs of error and appeals may be made upon the following grounds: For want of jurisdiction; for abatement; 1 for irregularities or informalities in the papers; no motion to dismiss had been made. 42 S. C. Rule 35; C. C. A. Rule 11; Dufour v. Lang, C. C. A., 54 Fed. 913. But see School Dist. of Ackley v. Hall, 106 U. S. 428, 27 L. ed. 237; Gumbel v. Pitkin, 113 U. S. 545, 28 L. ed. 1128; S. C. Rule 35, as first adopted, 137 U. S. 709. 43 Roemer v. Simon, 91 U. S. 149, 23 L. ed. 267; Nutter v. Mossberg, 118 Fed. 168; Mossberg v. Nutter, C. C. A., 124 Fed. 966, pending an application for leave to file a bill in the nature of a bill of review. 44 Roemer v. Simon, 91 U. S. 149, 23 L. ed. 267. 45 Idaho & Oregon, L. Imp. Co. v. Brandbury, 132 U. S. 509, 33 L. ed. 433. 46 Cheney v. Hughes, 138 U. S. 403, 34 L. ed. 993. But see Porter v. Foley, 21 How. 393, 16 L. ed. 154. § 705. 1 An abatement may occur by the death of a sole party on either side where the plaintiff has failed below and the cause of action does not survive. Martin's Adm'r v. Balt & O. R. Co., 151 U. S. 673, 703, 38 L. ed. 311, 322. But see Roberts v. Criss, C. C. A., 266 Fed. 296. By the failure of the plaintiff in error or appellant to revive the suit after for the failure of the plaintiff in error or appellant to perfect the appeal or proceedings in error; for the abandonment of the appeal or writ of error by the plaintiff in error or appellant; 2 upon the consent of the parties; 3 because of estoppel or waiver; 4 because the controversy has been settled pending the appeal or writ of error; 5 and because the suit is fictitious or there is no longer any real controversy between the parties. Cross-appeals may be dismissed upon the same grounds as original appeals.7 A writ of error or appeal may be dismissed for want of jurisdiction on the motion of the appellate court without the suggestion of either party. A writ of error or appeal will not be dis due notice of the death of a party, S. C. Rule 9; C. C. A. Rule 19; supra, § 227; but not when the right of action survives to or against the surviving parties, plaintiffs or defendants, as the case may be, Wilbite v. Shelton, C. C. A., 149 Fed. 67. By the death, State of Florida v. Croom, 226 U. S. 309, 57 L. ed. - or the retirement from office of an officer sued solely in his official capacity. Lansing & Co. v. Hesing, C. C. A., 81 Fed. 242. Shaffer v. Howard, 249 U. S. 200, 39 Sup. Ct. 255, 63 L. ed. 559; unless in the case of an officer of the United States his successor has within six months been substituted, 30 St. at L. 822, quoted supra, § 216. LeCrone v. McAdoo, 253 U. S. 217; or in the case of a State officer when the State law authorizes a revival or continuance of the case against his successors. Shaffer v. Howard, 249 U. S. 200, 39 Sup. Ct. 255, 63 L. ed. 559. By the reversal of a judgment upon which the decree below was founded, Chicago & V. R. Co. v. Fosdick, 106 U. S. 47, 84, 85, 27 L. ed. 47, 65; by the subsequent probate of a will when the appellant's claims are founded upon a supposed intestacy, Kimball v. Kimball, 174 U. S. 158, 43 L. ed. 932. By the foreclosure of a mortgage which cuts off the rights of the appellant, Lisman V. Knickerbocker Trust Co., C. C. A., 211 Fed. 413, 418; and by the repeal without a saving clause of the statute upon which the jurisdiction of the appellate court depends. Ex parte McCardle, 7 Wall. 506, 19 L. ed. 264; Balt. & P. R. Co. v. Grant, 98 U. S. 398, 25 L. ed. 231; infra, § 705e. 2 Infra, § 705a. 3 Infra, § 705b. 4 Infra, § 705c. 5 Infra, § 705d. 6 Ibid. 7 L. Bucki & Son L. Co. v. Atl. L. Co., C. C. A., 63 Fed. 765; Hilton v. Dickinson, 108 U. S. 165, 27 L. ed. 688; Hare v. Birkenfield, C. C: A., 181 Fed. 825. 8 Hilton v. Dickinson, 108 U. S. 165, 27 L. ed. 688; New Orleans Nat. Banking Ass'n v. New Orleans Mut. Ins. Ass'n, 102 U. S. 121, 26 L. ed. 45; Hapai v. Brown, 239 U. S. 502; Youtsey v. Niswonger, C. C. A., 258 Fed. 16 (when taken too late). A writ of error or appeal may be dismissed where it appears upon the missed for want of jurisdiction of the court below. In such a case the court of review will take jurisdiction and direct a reversal.10 A writ of error to a State court will be dismissed unless it shows at least a color of ground for the averment of a Federal question.11 The Supreme Court cannot dismiss a cause on motion, because it was brought there for delay only, nor because the grounds of the appeal or writ of error are frivolous, unless a motion to affirm is coupled with the motion to dismiss.12 Two concurrent appeals from the same order or examination of affidavits and counter-affidavits filed in the appellate court, that the value of the property in dispute is less than the jurisdictional amount. Wells v. Wilkins, 116 U. S. 393, 29 L. ed. 671. See supra, § 696. Where an appeal has been allowed after a contest as to the value of the matter in dispute, it will not be dismissed because the court may be of the opinion that possibly the estimates acted upon below were too high, if there is no decided preponderance of evidence against jurisdiction. Gage v. Pumfelly, 108 U. S. 164, 27 L. ed. 668. See also Zeigler v. Hopkins, 117 U. S. 683, 29 L. ed. 1019. Where the court below had failed to give due effect to a remittitur or release of part of the recovery, the Supreme Court modified the judgment so as to give due effect to the remittitur, and affirmed the judgment as thus modified so as to be less than the jurisdictional amount without examining the other assignments of error. Simms v. Simms, 175 U. S. 162, 44 L. ed. 115. So of the objection that there is a defeat of parties to the appeal or writ of error. Estis v. Trabue, 128 U. S. 225, 32 L. ed. 437; Ayres v. Polsdorfer, C. C. A., 105 Fed. 737; and cases cited supra, § 697. But see Clinchfield Fuel Co. v. Titus, C. C. A., 226 Fed. 574. A writ of error by the receiver of a 9 Harris v. Barber, 129 U. S. 366, 32 L. ed. 697; Pike v. Gregory, C. C. A., 94 Fed. 373; Nashua & L. R. Corp. v. Boston & L. R. Corp., C. C. A., 51 Fed. 929, 930; and cases cited infra, § 711. 10 Ibid. But see Davis v. Virginia Ry. & Power Co., C. C. A., 229 Fed. 633. Where the act which gave the jurisdiction to the court of first instance was repealed after a judg ment for the plaintiff, the appeal was dismissed. U. S. v. McCrory, C. C. A., 91 Fed. 295. 11 Hamblin v. Western Land Co., 147 U. S. 531, 37 L. ed. 267; Deming v. Carlise Packing Co., 226 U. S. 102, 57 L. ed. —; infra, § 705b. 12 Amory v. Amory, 91 U. S. 356, 23 L. ed. 436; Bohanan v. Nebraska, 118 U. S. 231, 30 L. ed. 71. See infra, § 705f. Cf. Citizens' Bank v. Farwell, C. C. A., 56 Fed. 539; Williams v. First Nat. Bank of Pauls Valley, 216 U. S. 582, 54 L. ed. 625. Where the time to appeal has expired the appellant is not prejudiced because of an affirmance instead of a dismissal. Corcoran v. Kostrometinoff, C. C. A., 164 Fed. 685. |