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the clerk of the court, agreeably to the rules of the court, and the appeal bond and security not having been given. Veitch & Co. v. Farmers' Bank, 6 Pet. 777.

6. (Jan., 1833.) The court refused to quash a writ of error on the ground that the record was not filed with the clerk of the court until the month of June, 1832, the writ having been returnable to January term, 1832. The defendant in error might have availed himself of the benefit of the twenty-ninth rule of the court, which gave him the right to docket and dismiss the cause. Pickett v. Legerwood, 7 Pet. 144.

7. (Jan., 1838.) A defendant in an appeal, using the copy of the record received from the Circuit Court, lodged by the appellant, cannot have the appeal docketed and dismissed, under the thirtieth rule of the court, on the ground that the appellant has failed to comply with the thirty-seventh rule, which requires a bond to be given to the clerk of the Supreme Court, before the case is docketed. He must, to sustain a motion to dismiss the cause, produce the certificate of the Circuit Court, stating the cause, and certifying that such an appeal has been duly sued out and allowed. West v. Brashear, 12 Pet. 101.

8. (Jan., 1841.) Motion by the counsel of the defendant to docket and dismiss a case in which a writ of error had been sued out of the Circuit Court, the plaintiff in error having failed to file the writ of error in the Supreme Court, and to prosecute the same. The counsel for the defendant produced the original writ of error, signed by the clerk of the Circuit Court, and a citation signed by the judges of the Circuit Court. Held, that the substance of the forty-third rule of the court was complied with; and the case was docketed and dismissed. The production of the writ of error, with the citation, is the highest evidence that the writ of error has been duly sued out and allowed. The certificate of the clerk of

1 Now the ninth rule.

the Circuit Court, required by the rule, is but prima facie evidence. Amis v. Pearle, 15 Pet. 211.

9. (Jan., 1841.) A case, on a writ of error to the Southern District of Mississippi, was docketed and dismissed on the 9th of February of the present term, upon motion of the defendant in error, under the forty-third rule of the court; and on the 11th of February a mandate, on a like motion, was ordered to issue to the Circuit Court to proceed in the case, which was issued on the next day. On the 6th of March the plaintiff in error appeared in court by his counsel, and produced and filed with the clerk the record of the case, and moved to strike off the judgment of dismissal, and to continue the case.

BY THE COURT: The judgment of dismissal under the rule is a judgment nisi, and it may be stricken out at any time during the court, upon motion, unless it appears that the omission to file the record and docket the case at an earlier period of the court, has been injurious to the interests of the defendant in error. The motion to reinstate addresses itself to the sound discretion of the court; and care will always be taken in granting the rule, that no injustice is done to the opposite party. The motion was granted. Gwin v. Breedlove, 15 Pet. 284.

10. Had the record in this case been filed at the time of the motion to dismiss, it is now evident, from the state of the business of the term, that the case could not have been reached and disposed of during the present term of the court. Ib.

11. The case of Owings v. Tiernan (10 Pet. 24) cited. Ib. 12. (Jan., 1846.) In order to entitle a party to have a case docketed and dismissed, under the forty-third rule of court, the certicate of the clerk of the court below must set forth an accurate titling of the case. Holliday v. Batson, 4 How. 645.

13. (Jan., 1849.) The meaning of the forty-third rule of

this court is, that, if a judgment or decree in the court below be rendered more than thirty days before the commencement of the term of this court, and the record be not filed within the first six days of the term, the appellee or defendant in error may docket the case, and move for its dismissal, as the rule prescribes. United States v. Boisdore, 7 How. 658.

14. But if the judgment or decree of the court below be rendered less than thirty days before the commencement of the term of this court, the rule does not apply. Ib.

15. (Dec., 1850.) In order to sustain a motion to docket and dismiss a case, under the forty-third rule of this court, it is necessary to show, by the certificate of the clerk of the court below, that the judgment or decree of that court was rendered thirty days before the commencement of the term of this court. Rhodes v. Steamship Galveston, 10 How. 144.

16. Hence, where the certificate of the clerk stated that a final judgment was pronounced at April term, 1850, it was not sufficient, because non constat that the April term might not have been prolonged until December, 1850. Ib.

17. (Dec., 1851.) Where a motion is made to docket and dismiss a case, under the forty-third rule of this court, the certificate of the clerk of the court below, upon which the motion is founded, must state the names of the parties to the suit. It is not enough to say, Joseph W. Clark and others. The names of the "others" ought to be set forth. Smith v. Clark, 12 How. 21.

18. (Dec., 1853.) Where an appeal was taken from a decree in chancery, which decree was made by the court below during the sitting of this court in term time, the appellant is allowed until the next term to file the record; and a motion to dismiss the appeal, made at the present term, before the case has been regularly entered upon the docket, cannot be entertained, nor can a motion to award a procedendo. Stafford v. Union Bank, 16 How. 135.

19. (Dec., 1855.) If the defendant in error files a copy of

the record before the expiration of the time which is allowed to the plaintiff in error to file it, and afterwards the plaintiff in error files the record in proper time, the case made by the defendant in error will be dismissed. Hartshorn v. Day, 18 How. 28.

20. (Dec., 1855.) Where the record is not filed by the appellant within the time prescribed by the rules of this court, and the appellee files a copy of it, the appeal will be dismissed upon his motion. United States v. Fremont, 18 How. 30.

21. (Dec., 1855.) A certificate from the clerk of the Circuit Court, that he cannot make out the record in time to comply with the sixty-third rule of this court, does not furnish a sufficient reason for an extension of the time prescribed by that rule. Sturgess v. Harrold, 18 How. 40.

22. (Dec., 1856.) Where an appeal is taken to this court, the transcript of the record must be filed and the case docketed at the term next succeeding the appeal. Steamer Virginia v. West, 19 How. 182.

23. Although the case must be dismissed if the transcript is not filed in time, yet the appellant can prosecute another appeal at any time within five years from the date of the decree, provided the transcript is filed here, and the case docketed at the term next succeeding the date of such second appeal. Ib.

24. (Dec., 1857.) Although an irregularity in the citation may be cured by an appearance in court, yet a defect in the writ of error (such as not naming a return-day for the writ), or an omission to file a transcript of the record at the term next succeeding the issuing of the writ or the taking of the appeal, are fatal errors, and the case must be dismissed for want of jurisdiction. Carroll v. Dorsey, 20 How. 204.

25. (Dec., 1857.) Under the sixty-third rule of this court, an appellee, in a case from California, may docket and dismiss according to that rule; but a new appeal may be taken

at any time within five years, or it may be that the record may be filed by the appellant at the same term at which a certificate or record had been filed by the appellee, and the case dismissed. United States v. Pacheco, 20 How. 261.

26. After a case has been thus docketed and dismissed, at the instance of an appellee who is a claimant of land, if a patent should be taken out, it will still be subject to be reviewed by this court at any time within the five years above mentioned. Ib..

27. (Dec., 1858.) After an appeal has been docketed and dismissed, under the sixty-third rule of court, at a prior term of the court, the same case cannot again be docketed without a new appeal. Rogers v. Law, 21 How. 526.

28. (Dec., 1859.) Where a writ of error was allowed in open court, in the Circuit Court, but this writ had no seal, and was not returned to this court with the transcript of the record, and, two terms afterwards, a paper was filed in the clerk's office, in form of a writ of error, but without a seal, and having no authenticated transcript annexed, the cause must be dismissed on motion. Overton v. Cheek, 22 How. 46.

29. (Dec., 1859.) A motion to docket and dismiss a case, from the failure of the appellant to file the record within the time required by the rule of this court, when granted, is not an affirmance of the judgment of the court below. It remits the case to the court to have proceedings to carry that judgment into effect, if, in the condition of the case, there is nothing to prevent it. That is for the consideration of the judge in the court below, with which this court has nothing to do, unless his denial of such a motion gives to the party concerned a right to the writ of mandamus. United States

v. Gomez, 23 How. 326.

30. When this court is satisfied, from the evidence before it, that no appeal to it had been granted by the court below, and that the cause was not before it, when an order was passed, at the instance of the appellee, to docket and dismiss

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