decree by the same party to the same court are not allowed, and on motion such court will determine which of the two should be dismissed; 13 but a writ of error from the Circuit Court of Appeals should not be dismissed because the Supreme Court has issued a writ of error to review the judgment upon another ground.14 Motions to dismiss writs of error and appeals for irregularities and informalities in the papers are of less importance now than formerly, on account of the statute allowing amendments in nearly every case of an irregularity or informality.15 13 Wheeler v. Harris, 13 Wall. 51, 20 L. ed. 531. The allowance of an appeal which afterwards becomes of no avail, from failure to file the record and prosecute it, is no bar to a second appeal, within the time allowed by law. Evans v. State Nat. Bank, 134 U. S. 330, 33 L. ed. 917. No motion to dismiss will be granted because the transcript filed is incomplete, if properly certified. U. S. v. Davenport's Heirs, 142 U. S. 704, 35 L. ed. 1174; Gregory v. Pike, 64. 14 Lamar v. U. S., 241 U. S. 103. 15 U. S. R. S., § 1005. See supra, § 699. An appeal will not be dismissed because no citation was served when the appeal was taken in open court, nor because the citation was served less than thirty days before the return-day. Seagrist v. Crabtree, 127 U. S. 773, 32 L. ed. 323. An appeal will not be dismissed because no bond was filed in the court below, when the appeal was taken in open court, and the bond filed in the court of review. Sumpter Lumber Co. V. Sound Timber Co., C. C. A., 257 Fed. 408. Nor, it seems in any case where the appellate court sees fit to relieve the party from such a default. Graham v. O'Ferral, C. C. A., 236 Fed. 717. An appeal will not be dismissed because a supersedeas has been improperly awarded. Hudgins v. Kemp, 18 How. 530, 15 L. ed. 511; La Conner Trading & Transportation Co. v. Widmer, C. C. A., 136 Fed. 177 (an appeal bond in admiralty) nor, because the statement of facts found by the court and its conclusions of law thereon are not a sufficient compliance with the rules of the Supreme Court on that subject. U. S. v. Adams, 6 Wall. 101, 18 L. ed. 792. A writ of error has been dismissed for the failure to annex to the transcript an assignment of errors. Dufour v. Lang, C. C. A., 54 Fed. 913. See S. C. Rule 35; C. C. A. Rule 11; Benites v. Hampton, 123 U. S. 519, 31 L. ed. 260; supra, § 701. But see School Dist. v. Hall, 106 U. S. 428, 27 L. ed. 237; Gumbel v. Pitkin, 113 U. S. 545, 28 L. ed. 1128. The objection that the plaintiff in error or appellant has failed to perfect the appeal or writ of error must be taken by a preliminary motion to dismiss the writ of error or appeal for irregularity. Mandeville v. Riggs, 2 Pet. 482, 7 L. ed. 493. And in many cases it will be waived by the appearance of the defendant in error or respondent in the appellate court for a term without a motion to dismiss. U. S. $705a. Dismissal because of default. If the plaintiff in error or appellant fails to docket the case with the clerk of the appellate court before the return-day, whether in vacation or v. Armejo, 131 U. S. lxxxii, 18 L. ed. 247; Pierce v. Cox, 9 Wall. 786, 19 L. ed. 786; Buckingham v. McLean, 13 How. 150, 14 L. ed. 93; Radford v. Folsom, 123 U. S. 725, 31 L. ed. 292. Such an appearance and delay is a waiver of the objection that the citation has not been served; U. S. v. Armejo, 131 U. S. lxxxii, 18 L. ed. 247; Pierce v. Cox, 9 Wall. 786, 19 L. ed. 786; Buckingham v. McLean, 13 How. 150, 14 L. ed. 90; Radford v. Folsom, 123 U. S. 725, 31 L. ed. 292; Chaffee v. Hayward, 20 How. 208, 15 L. ed. 804; Lockman v. Lang, C. C. A., 132 Fed. 1; and a waiver of the objections that the citation is signed by a different judge from the one who allowed the appeal; Aldrich v. Etna Co., 8 Wall. 491, 19 L. ed. 473; Sage v. Railroad Co., 96 U. S. 712, 24 L. ed. 641; and that the return-day named in the writ is too late; Freeman v. Clay, 48 Fed. 849; and of most objections that might be cured by amendment. Waters-Pierce Oil Co. v. Van Elderen, C. C. A., 137 Fed. 557; Love v. Busch, C. C. A., 142 Fed. 429, 431. Cf. Long v. Farmers' State Bank, C. C. A., 147 Fed. 360, citing McDonogh v. Millaudon, 3 How. 693, 700, 11 L. ed. 787, 794. Where a motion is made to dismiss an appeal upon the ground that no appeal bond has been given, or approved, or citation served, the court will usually give a reasonable time to supply the deficiency. Anson v. Blue Ridge R. Co., 23 How. 1, 16 L. ed. 517; Richardson v. Green, 130 U. S. 104, 32 L. ed. 872; Freeman v. Clay, 48 Fed. 849; O'Reilly v. Edrington, 96 U. S. 724, 24 L. ed. 659; Fisher Hydraulic Stone & Machinery Co. v. Warner, C. C. A., 233 Fed. 527; Graham v. O'Ferral, C. C. A., 236 Fed. 717; in one case sixty days, to file the bond; Anson v. Blue Ridge, R. C. 23 How. 1, 16 L. ed. 517. A writ of error was dismissed when the plaintiff in error refused to give the clerk security for his fees as required by the former rule. Owings v. Tierman, 10 Peters, 447, 9 L. ed. 480, § 8, S. C. Rule 10 quoted, § 706, infra; supra, § 704. A writ of error will not be dismissed because the bill of exceptions was not signed in due time. E. I. Du Pont de Nemours & Co. v. Smith, C. C. A., 249 Fed. 403; nor because it was allowed in a division of the district other than that in which was situated the county of the State where the case was pending when removed from the Federal court. Wheeler v. Taft, C. C. A., 216 Fed. 978; nor will an appeal be dismissed because of a clerical error in the description of the decree appealed from; Brown v. Kossove, C. C. A., 255 Fed. 806. Nor will the writ of error be dismissed because the case should have been reviewed by appeal. Toyo Kisen Kaisha v. Hartman, C. C. A., 253 Fed. 422; nor an appeal dismissed because the review should have been by writ of error (Act of Sept. 6, 1916, Ch. 448, § 4, 39 St. at L. 727, Comp. St., § 1649a), supra, § 687. Sola v. Cintron & Aboy, C. C. A., 237 Fed. 61. in term, unless his time has been enlarged by the justice or judge who signed the citation or by a judge or justice of the appellate court, which enlargement can only be by an order to be filed with the clerk of the appellate court; 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 has been duly sued out and allowed.2 It seems that if the record is not filed in the court of review at the term succeeding that at which the appeal is allowed or the writ of error issued, the appeal or writ of error becomes void, and the appellate court will of its own motion dismiss the appeal, unless good cause for a review is § 705a. 1 An order extending the time to file the return, if made by a district judge who, when he signs it, is not a member of the Circuit Court of Appeals, is a nullity. West v. Irwin, 54 Fed. 419, 420. 2 S. C. Rule 9, C. C. A. Rule 16; Wong Sang v. U. S., C. C. A., 144 Fed. 968; incorporated town of Gilman v. Fernald, C. C. A., 141 Fed. 940; Love v. Busch, C. C. A., 142 Fed. 429. Where an appellant or plaintiff in error without fault on his part was prevented from filing the transcript by the fraud of his opponent or the contumacy of the clerk or the order of the court below, his time to file the transcript was enlarged. U. S. v. Gomez, 3 Wall. 752, 18 L. ed. 212; Ableman v. Booth, 21 How. 506, 512, 16 L. ed. 169, 172. The failure to docket in time is not excused by the fact that the clerk below agreed to file the record, and it was left with him for that purpose, Fayolle v. Texas & Pac. Ry. Co., 124 U. S. 519, 31 L. ed. 533; nor by his certificate that he could not, consistently with his other duties, return a transcript of the record within the required time, Sturgess v. Harrold, 18 How. 40, 15 L. ed. 261, nor by his mistake as to the return-day, Richardson v. Green, 130 U. S. 104, 32 L. ed. 872. But where the transcript was filed within the time required by the rule, but a few days after the return-day, the delay was excused, Florida v. Charlotte H. Ph. Co., C. C. A., 70 Fed. 883; Farmers' L. & Tr. Co. v. Chicago & N. P. R. Co., C. C. A., 73 Fed. 314; McClellan v. Pyeatt, C. C. A., 49 Fed. 259. 3 Castro v. U. S., 3 Wall. 46, 18 L. ed. 163; Killian v. Clark, 111 U. S. 784, 28 L. ed. 599; Radford v. Folsom, 123 U. S. 725, 31 L. ed. 292; Small v. Northern Pac. R. Co., 124 U. S. 514, 33 L. ed. 1006; West v. Irwin, C. C. A., 54 Fed. 419. See authorities cited supra, § 704; Hudson v. Limestone Natural Gas Co., C. C. A., 144 Fed. 952; Wong Sang v. U. S., C. C. A., 144 Fed. 968. See Amendment of Rules, 137 U. S. 710; C. C. A. Rules 14, 16. As to appeals from the Supreme Court of Porto Rico, see Graham v. O'Ferral, C. C. A., 236 Fed. 717. But see shown. It has been held that an order of enlargement made after the time has expired, is ineffectual, but where the transcript is filed before the motion to dismiss is made, the motion will usually be denied. The fact that the appellee or defendant in error has failed to file the record and docket the cause within the time prescribed does not deprive him of the right to have the cause dismissed." When the case is reached on the calendar and no counsel appears and no brief has been filed for the plaintiff in error or appellant, the defendant in error or respondent may have the plaintiff called and the writ of error or appeal dismissed, or may open the record and pray for an affirmance; but the court may, of its own motion, consider the case on the merits.8 This, except in an extraordinary case, the court will not do unless the assignment of errors clearly presents the questions in issue.9 A writ of error cannot be dis Betts v. Gahagan, C. C. A., 205 Fed. 890; Grafton v. Meikleham, C. C. A., 246 Fed. 737. 4 Pender v. Brown, C. C. A., 120 Fed. 496. 5 Chamberlain Transportation Co. v. South Pier Coal Co. C. C. A., 126 Fed. 165. 6 Southern Pine Lumber Co. v. Ward, 208 U. S. 126, 52 L. ed. 420; Altenberg v. Grant, C. C. A., 83 Fed. 980, 981; The Kawailani, C. C. A., 128 Fed. 879; Incorporated Town of Gilman v. Fernald, C. C. A., 141 Fed. 940; Equitable Life Assur. Soc. of U. S. v. Tolbert, C. C. A., 145 Fed. 338. See Bingham v. Morris, 7 Cranch, 99, 3 L. ed. 281; Sutherland v. Pearce, C. C. A., 186 Fed. 783. 7 U. S. v. Fremond, 18 How. 30, 15 L. ed. 302. 8 S. C. Rule 16; C. C. A. Rule 22; Newman v. Moyers, 253 U. S. 182. This rule of the Circuit Court of Appeals does not apply when there is a call of the entire docket at the beginning of the term, and a case is then called in order to appoint a day for the argument, but is not actually reached for argument. Lem Hing Dun v. U. S., C. C. A., 49 Fed. 145. A cross-appeal will be dismissed if not ready for argument when the original appeal is called, unless reason for a postponement is shown. L. Bucki & Son L. Co. v. Atlantic C. L. Co., C. C. A., 93 Fed. 765; Yates v. Jones Nat. Bank, 206 U. S. 158, 51 L. ed. 1002 (where the writ of error was dismissed as regards one of two plaintiffs in error, and the judg ment affirmed as regards the other). 9 Fitch v. Richardson, C. C. A., 147 Fed. 196. An appeal was dismissed for delay in filing a brief, although the delay was authorized by a stipulation of the parties, made without the consent of the court, and the brief was filed a short time before the dismissal. Missouri, K. & T. Ry. Co. v. Kidd, C. C. A., 146 Fed. 499. See Moline Trust & Savings Bank v. Wylie, C. C. A., 149 Fed. 734. Additional time was re missed for want of the appearance of counsel for the plaintiff in error before it is reached on the calendar.10 When a case is reached for argument on the regular call of the docket and there is no appearance of either party, the case will be dismissed at the cost of the plaintiff in error or appellant. Such a default may for good. cause be opened at the same term.12 When a case is called for argument in the Supreme Court at two successive terms and upon the second term no one is prepared to argue it, it will be dismissed at the cost of the plaintiff in error or appellant, unless good cause to the contrary is shown.13 § 705b. Dismissal upon consent. A writ of error or appeal may be dismissed on the consent of both parties thereto.1 An fused where it appeared that there must be an affirmance. Matsumura v. Higgins, C. C. A., 187 Fed. 601. When the plaintiff in error or appellant fails on the argument to submit a brief such as is required by Supreme Court Rule 21, or Circuit Court of Appeals Rule 24, the case may be dismissed. S. C. Rule 21; C. C. A. Rule 24; Benites v. Hampton, 123 U. S. 519, 31 L. ed. 260. See infra, § 707. 10 Larman v. Tisdale, 142 U. S. 705, 35 L. ed. 1174; Newman v. Moyers, 253 U. S. 182, where the judgment enforced an illegal contract. 22. 11 S. C. Rule 18; C. C. A. Rule 12 Rosenthal v. Coates, 148 U. S. 142, 37 L. ed. 399. 13 S. C. Rule 19; C. C. A. Rule 17. § 705b. 1S. C. Rule 28; C. C. A. Rule 20. In the Supreme Court it seems that in term time a motion founded upon a stipulation for such dismissal should be made in open court before the case will be dismissed. In vacation in the Supreme Court and at all times in the Circuit Court of Appeals, whenever plaintiff and defendant in error, or appellant and appellee, sign and file an agreement in writing through their attorneys of record directing the case to be dismissed and specifying the terms on which it is to be dismissed as to costs, and pay to the clerk any fees that may be due to him, it is the duty of the clerk to enter the case dismissed, and give a copy of the agreement to the parties requesting it, but no mandate or other process will issue without the order of the court. S. C. Rule 91, C. C. A. Rule 16; Wong Sang v. U. S., C. C. A., 144 Fed. 968. Where, after an order of dismissal on such a stipulation in vacation, but before a mandate had issued, a third party intervened, claiming that he had previously bought the rights of the plaintiff in error, and that the dismissal was in fraud of his rights, the order of dismissal was amended by adding the words: "without prejudice to the right of Albert M. Henry to proceed as he may be advised in the court below, for the protection of his interest." Woodman v. Mis |