the appellant or plaintiff in error has acted under duress; 2 or upon proof that the act sought to be prohibited has been committed, at least in a case where no compensation can be given by damages. Where the enactment of new legislation has rendered the controversy moot, the usual practice is not to consider the merits but to direct a dismissal of the bill without prejudice and without costs by affirmance or reversal as the action of the lower court demands. An appeal will be dismissed by the court v. Fairbanks, C. C. A., 249 Fed. 431. Appeals were dismissed when stipulations were made that the suits should abide by the orders, judgments and decrees that might be made and entered in another case, Knott v. St. Louis Southwestern Ry. Co., 230 U. S. 509. The fact that questions of costs are involved does not alter the rule as to the dismissal of moot questions. Wingert v. First Nat. Bank, 223 U. S. 670, 672, 32 Sup. Ct. 391, 56 L. ed. 605; Lisman v. Knickerbocker Tr. Co., C. C. A., 211 Fed. 413, 417. Where there was an actual controversy, an appeal was not dismissed because the persons interested agreed in advance as to the steps taken to present the issue. Ex parte Steele, C. C. A., 162 Fed. 694. An appeal from a judgment enforcing a judgment of the Interstate Commerce Commission was not dismissed, although the time during which the order was effectual had expired. Southern Pac. Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498, 55 L. ed. 310. Upon the point whether the questions presented are in fact moot the court may satisfy itself, if necessary, by extrinsic evidence. Mills v. Green, 159 U. S. 651, 16 Sup. Ct. 132, 40 L. ed. 293; Jones v. Montague, 194 U. S. 147, 24 Sup. Ct. 611, 48 L. ed. 913; Richardson v. McChesney, 218 U. S. 487, 31 Sup. Ct. 43, 54 L. ed. 1121; Buck Stove, etc., Co. v. Am. Federation of Labor, 219 U. S. 581, 31 Sup. Ct. 472, 55 L. ed. 345, Gompers v. Buck Stove, etc., Co., 221 U. S. 418, 451, 31 Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874; Meyers v. Cheesman, C. C. A., 174 Fed. 783, 785; Lisman v. Knickerbocker Tr. Co., C. C. A., 211 Fed. 413, 417. 2 Am. Book Co. v. Kansas, 193 U. S. 49, 48 L. ed. 613. 3 Wingert v. First Nat. Bank of Hagerstown, 223 U. S. 670, 56 L. ed. 605, the construction of a building; Mills v. Green, 159 U. S. 651, 40 L. ed. 293; Jones v. Montague, 194 U. S. 147; Richardson v. McChesney, 218 U. S. 487, 54 L. ed. 1121, election cases. Contra, matter of Madden, 148 N. Y. 136; Matter of Goodman, 146 N. Y. 284; People ex rel. Press Pub. Co. v. Martin, 72 Hun. 354; s. C., 142 N. Y. 228, 40 Am. St. Rep. 592; Matter of Cuddebeck, 3 N. Y. App. Div. 103; matter of Hopper v. Britt, 203 N. Y. 144; Matter of Hopper v. Britt, 204 N. Y. 524; People ex rel. Hotchkiss v. Smith, 206 N. Y. 231, 241; State ex rel Morris v. Wrightson, 56 N. J. Law 126. See also Davis v. Ohio, 241 U. S. 565. 4 Dinsmore v. Southern Express Co., 183 U. S. 115, 46 L. ed. 111. when it is shown by affidavits filed on behalf of persons not parties to the suit, that it is not conducted by parties having adverse interests, but is a collusive appeal taken for the purpose of obtaining a decision.5 § 705e. Practice upon motions to dismiss. No motion to dismiss, except on special assignment by the court, will be heard, unless previous notice has been given to the adverse party, or his counsel or attorney. In the Supreme Court the party moving to dismiss must serve notice of the motion, with a copy of his brief or argument, on the counsel for his opponent at least three weeks before the time fixed for submitting the motion, in all In the latter cases after legislation which made the controversy moot the Supreme Court directed the dismissal of the bill without prejudice and without costs. Berry v. Davis, 242 U. S., 468; Board of Public Utility Commissioners v. Compañia General de Tabacos de Filipinas, 249 U. S. 425. So in City of Paducah v. Paducah Water Co., C. C. A., 258 Fed. 20 (municipal ordinance). This was also done where a war had rendered the controversy moot by interrupting the business which was affected. U. S. V. Hamburg-Amerikanische Packetfahrt-Actien Gesellschaft, 239 U. S. 466; U. S. v. Am.-Asiatic Steamship Co., 242 U. S. 537. See Commercial Cable Co. v. Burleson, 250 U. S. 360, 39 Sup. Ct. 512, 63 L. ed. 1030. Where the new statute re-enacted with additions the former law and was open to the same constitutional objections the Supreme Court exercised jurisdiction to decide those upon the writ of error. Campbell v. California, 200 U. S. 37, 50 L. ed. 382. Borgfeldt & Co., C. C. A., 254 Fed. 694. Upon a motion to dismiss an appeal on the ground that the controversy is fictitious, where the evidence leaves the question doubtful, the court will grant a rule to show cause why the suit should not be dismissed, with leave to both parties to take and file depositions in support of and against the motion. Am. Wood Paper Co. v. Heft, 8 Wall, 333, 19 L. ed. 379; East Tenn., V. & G. R. Co. v. So. Tel. Co., 125 U. S. 695, 31 L. ed. 853. Where pending an appeal in a suit between two corporations a majority of the stock of the defendant appellant had been acquired by the parties in control of the plaintiff respondent, the Supreme Court reversed the decree without passing upon the merits and remanded the case for further proceeding in conformity with the law. So. Spring H. G. Min. Co. v. Amador M. G. Min. Co., 145 U. S. 300, 36 L. ed. 712. A receiver cannot, by a compromise subsequent to the decree, deprive of his right to appeal a creditor who is a party to the suit. Empire State Surety Co. v. Carroll County, C. C. A., 194 Fed. 593. § 705e. 1S. C. Rule 6. cases except where such counsel resides west of the Rocky Mountains, when the notice must be at least thirty days.2 Affidavits of the deposit in the mail of the notice and brief, properly addressed to the counsel to be served, duly postpaid, in time to reach him by due course of mail, three weeks or thirty days, as the case may be, before the time fixed by the notice, is prima facie evidence of service on counsel who reside without the District of Columbia. Further time may, however, be given either party by the court. A motion to dismiss a writ of error or appeal upon the ground of want of jurisdiction, or, it seems, for any other ground except a failure to take the same in due time,5 or a failure to perfect the same,6 may be made at any time, even before the term to which the return should regularly be made.7 The motion day in the Supreme Court is Monday throughout the term. The motion, if not a motion to docket and dismiss for failure to file the record, must, in the first instance, be submitted on printed briefs and arguments. If the court requires further argument on the subject, it will usually be ordered in connection with the argument of the case on the merits.10 The motion papers should contain so much of the record as to enable the court to act understandingly. A printed transcript of the proceedings in the court below may be used although the record has not been printed in the court of review.12 Affidavits may be used in support of the motion in a proper case.13 Where 2 S. C. Rule 6. 3 S. C. Rule 6. 4 S. C. Rule 6. 5 Such a motion must be seasonably made. Bryar v. Campbell, 177 U. S. 649, 44 L. ed. 926. 6 Supra, §§ 702, 704. 7 Ex Parte Russell, 13 Wall. 664, 20 L. ed. 632; Clark v. Hancock, 94 U. S. 493, 24 L. ed. 146; Thomas v. Wooldridge, 23 Wall. 283, 23 L. ed. 135; Whitney v. Cook, 99 U. S. 607, 25 L. ed. 446; Whitcomb v. Smithson, 175 U. S. 635, 44 L. ed. 303; Sugg v. Thornton, 132 U. S. 524, 33 L. ed. 447; supra, note 2; Hook v. Mercantile Tr. Co., C. C. A., 95 Fed. 41. Laches is no ground for denying a motion to dismiss because of a settlement of the controversy. Little v. Bowers, 134 U. S. 547, 33 L. ed. 1016; supra, § 705, note 7. 8 S. C. Rule 6. 9 S. C. Rule 6. 10 S. C. Rule 6. 11 Texas Land & Cattle Co. v. Scott, 137 U. S. 436, 34 L. ed. 730; Waterville v. Van Slyke, 115 U. S. 290, 29 L. ed. 406; Mayer v. Walsh, 108 U. S. 17, 27 L. ed. 635. 12 Lazarus v. Prentice, 234 U. S. 263. 13 Rector v. Lipscomb, 141 U. S. 557, 35 L. ed. 857; Whiteside v. Hazleton, 110 U. S. 296, 28 L. ed. 152; supra, § 696. For a case where the question is doubtful or the examination of a bulky record is required, it is usual to postpone the decision till the argument of the whole case.14 15 After one motion to dismiss has been filed and set down for a hearing, the party that filed it has no right to file a second motion to dismiss upon new grounds without leave of the court.1 Such leave will not be granted upon formal grounds only.16 If the papers are wholly insufficient to sustain the jurisdiction of the appellate court, that court may of its own motion, at the hearing on the merits, have notice of the insufficiency.17 After the dismissal of a writ of error or appeal, the court may, but rarely will, reinstate this upon a motion made at the same term at which the order of dismissal was entered.18 The dismissal of the court held it improper to file copies of certain letters, see U. S. v. Griffith, 141 U. S. 212, 35 L. ed. 719. 14 Standard Oil Co. v. Bell, C. C. A., 82 Fed. 113. This is usually done when the objection is a defect of parties. Graham v. O'Ferral, C. C. A., 236 Fed. 717. When there were cross appeals from different decisions in the same case and the dismissal of one would not limit the court's power to consider the questions thereby raised when deciding the other, instead of granting a motion to dismiss the former, they were consolidated. U. S. v. St. Louis Terminal, 236 U. S. 194. The postponement of the consideration of the notion until a hearing of the case upon the merits is not a decision that the court has power to review the judgment; Cerecedo v. U. S., 239 U. S. 1. 15 Nashua & L. R. Corp. v. Boston & L. R. Corp., 51 Fed. 929, 931, per Gray, J. 16 Ibid. 17 Ibid. 18 Bank of U. S. v. Swan, 3 Pet. 68, 7 L. ed. 605; Glenny v. Langdon, 94 U. S. 604, 24 L. ed. 237; Knox v. Exchange Bank, 12 Wall. 379, 20 L. ed. 414; Alviso v. U. S., 6 Wall. 457, 18 L. ed. 721; Betts v. Gahagan, C. C. A., 205 Fed. 890. The allowance of such an order rests in the discretion of the appellate court. Gwin v. Breedlove, 15 Pet. 284, 10 L. ed. 740; James v. McCormack, 105 U. S. 265, 26 L. ed. 1044. A motion to reinstate the cause must be made at the term at which the order of dismissal was entered. Rice v. Minn. & N. W. R. Co., 21 How. 82, 16 L. ed. 31; Selma & M. R. Co. v. Louisiana Nat. Bank, 94 U. S. 253, 24 L. ed. 32. But see Jackson v. Ashton, 10 Pet. 480, 9 L. ed. 502. Long delay may be a ground for denying such a motion, even though made at the term at which the order of dismissal was entered. Johnson v. Wilkins, 118 U. S. 228, 30 L. ed. 210; Deming's Appeal, 10 Wall. 251, 19 L. ed. 893. Such a motion may be granted, where the notice of the motion to dismiss was insufficient and irregular, since it designated no time for hearing, Glenny v. Lang an appeal, although erroneous, does not vacate the decree appealed from.19 A party who has obtained an order dismissing his adversary's appeal is estopped from maintaining the jurisdiction of the appellate court by objecting to the jurisdiction of the court below although the time allowed for an application for a rehearing has not expired.20 Upon the dismissal of an appeal the court has the power to allow damages not exceeding five per centum for the delay.21 § 705f. Motions to affirm. "The court in any pending cause will receive a motion to affirm on the ground that it is manifest that the writ or appeal was taken for delay only, or that the questions on which the decision of the cause depend are so frivolous as not to need further argument. The same procedure shall apply to and control such motions as is provided for in cases of motions to dismiss under paragraph 4 of this rule." This practice has been followed in the Circuit Court of Appeals for the Second Circuit when made in the alternative asking the court don, 94 U. S. 604, 24 L. ed. 237; where the omission to return the citation arose from the neglect of the court below, and the citation has been lost or destroyed; Alviso v. U. S., 6 Wall. 457, 18 L. ed. 721; where a trustee in bankruptcy applies to have a case reinstated which was dismissed, and to be substituted for the bankrupt as plaintiff in error, if he applies at the same term, Knox v. Exchange Bank, 12 Wall. 379, 20 L. ed. 414; where an appeal has been dismissed for the failure of the appellant to file a transcript within the time required by the rule of the court, provided that the transcript is filed during the term. Bank of U. S. v. Swan, 3 Pet. 68, 7 L. ed. 605; West Chicago St. R. Co. v. Ellsworth, C. C. A., 77 Fed. 664. But see Rule 8 as amended, 137 U. S. 710; Bradley v. Eccles, C. C. A., 126 Fed. 945. 19 Stewart v. ONeal, C. C. A., 237 Fed. 897. § 705f. 1S. C. Rule 6, subd. 5; Whitney v. Cook, 99 U. S. 607, 25 L. ed. 446; Hinckley v. Morton, 103 U. S. 764, 26 L. ed. 458; Micas v. Williams, 104 U. S. 556, 26 L. ed. 842; Swope v. Leffingwell, 105 U. S. 3, 26 L. ed. 939; Chanute City v. Trader, 132 U. S. 210, 33 L. ed. 345; Ennis Water Works v. City of Ennis, 233 U. S. 652; Toop v. Ulysses Land Co., 237 U. S. 580; Pennsylvania Co. v. Donat, 239 U. S. 50; Chi. & Rock Island R. R. v. Devine, 239 U. S. 52; Union Pac. R. R. Co. v. Laughlin, 247 U. S. 204; Palmer v. Ohio, 248 U. S. 32; Piedmont Power & Light Co. v. Town of Graham, 253 U. S. 193. See § 707 infra. But see Contributors to the Pennsylvania Hospital v. City of Philadelphia, 245 U. S. 20; Bates v. Bodie, 245 U. S. 520. |