either to dismiss or to affirm. The motion, like all other motions in the Supreme Court, must be reduced to writing, and contain a brief statement of the facts and object of the motion. It is the safer and the usual practice for the moving party to print the transcript before the submission of the motion, unless it has been previously printed by his adversary. The motion papers should contain so much of the record as to enable the court to act understandingly. The motion to affirm, if made before the record is printed, will rarely be granted unless the motion papers, which must be printed, are very full, and clearly show the frivolous character of the appeal or error.5 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.6 § 706. Printing the record. The record must be printed for the use of the court and counsel. The following rule regulates 2 Rhederi Actien Gesellschaft Oceana v. Holland, C. C. A., 241 Fed. 990; National Surety Co. v. Universal Transp. Co., C. C. A., 256 Fed. 450; both in the Second Circuit. Felkner v. Southern Trust Co., C. C. A., 8th ct., 264 Fed. 798. Formerly in the Supreme Court a motion to affirm was not granted unless as an alternative to a motion to dismiss and not then unless there was a colorable ground for the dismissal. School Dist. v. Hall, 106 U. S. 428, 27 L. ed. 287; Hinckley v. Morton, 103 U. S. 764, 26 L. ed. 458; Davies v. Corbin, 113 U. S. 687, 28 L. ed. 1149; Walsington v. Nevin, 128 U. S. 578, 32 L. ed. 544; New Orleans v. Louisiana Const. Co., 129 U. S. 45, 32 L. ed. 607; The Alaska, 130 U. S. 201, 32 L. ed. 923. Except in cases where the appeal was clearly frivolous. Chanute City v. Trader, 132 U. S. 210, 33 L. ed. 345; The S. C. Tyron, 105 U. S. 267, 26 L. ed. 1026; Swope & Leffingwell, 105 U. S. 3, 26 L. ed. 939; Sugg v. Thorn ton, 132 U. S. 524, 33 L. ed. 447. 4 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. 5 Crane Iron Co. v. Hoagland, 108 U. S. 6, 27 L. ed. 632; Carey v. Houston & T. C. Ry. Co., 150 U. S. 170, 37 L. ed. 1041; The Colonel McLeod, 112 U. S. 710, 28 L. ed. 825. 6 Standard Oil Co. v. Bell, C. C. A., 82 Fed. 113. printing the record in the Supreme Court:-"1. In all cases the plaintiff in error or appellant, on docketing a case and filing the record, shall make such cash deposit with the clerk, for the payment of his fees as he may require, or otherwise satisfy him in that behalf. 2. The clerk shall cause an estimate to be made of the cost of printing the record, his fee for preparing it for the printer and supervising fee, and other probable fees, and upon application therefor shall furnish the same to the party docketing the case. If such estimated sum should not be paid within ninety days after the cause is docketed it shall be the duty of the Clerk to report that fact to the court, and thereupon the cause will be dismissed, unless good cause to the contrary is shown. 3. Upon payment by either party of the amount estimated by the clerk, twenty-five copies of the record shall be printed, under his supervision, for the use of the court and of counsel. 4. In cases of appellate jurisdiction the original transcript on file shall be taken by the clerk to the printer. But the clerk shall cause copies to be made for the printer of such original papers, sent up under Rule 8, section 4, as are necessary to be printed; and of the whole record in cases of original jurisdiction. 5. The clerk shall supervise the printing, and see that the printed copy is properly indexed. He shall distribute the printed copies to the justices and the reporter, from time to time, as required, and a copy to the counsel for the respective parties. 6. If the actual cost of printing the record, together with the fee of the clerk, shall be less than the amount estimated and paid, the amount of the difference shall be refunded by the clerk to the party paying it. If the actual cost and clerk's fee shall exceed the estimate the amount of the excess shall be paid to the clerk before the delivery of a printed copy to either party or his counsel. 7. In case of reversal, affirmance, or dismissal, with costs, the amount of the cost of printing the record and of the clerk's fee shall be taxed against the party whom costs are given, and shall be inserted in the body of the mandate or other proper process. 8. Upon the clerk's producing satisfactory evidence, by affidavit or the acknowledgment of the parties or their sureties of having served a copy of the bill of fees due by them, respectively, in this court, on such parties or their sureties, an attachment shall issue against such parties or sureties, respectively, to compel payment of said fees. 9. When the record is filed, or within twenty days thereafter, the plaintiff in error or appellant may file with the Clerk a statement of the points on which he intends to rely and of the parts of the record which he thinks necessary for the consideration thereof, with proof of service of the same on the adverse party. The adverse party, within thirty days thereafter, may designate in writing, filed with the Clerk, additional parts of the record which he thinks material; and, if he shall not do so, he shall be held to have consented to a hearing on the parts designated by the plaintiff in error or appellant. If parts of the record shall be so designated by one or both of the parties, the Clerk shall print those parts only; and the Clerk will consider nothing but those parts of the record and the points so stated. If at the hearing it shall appear that any material part of the record has not been printed, the writ of error or appeal may be dismissed or such other order made as the circumstances may appear to the Court to require. If the defendant in error, or appellee, shall have caused unnecessary parts of the record to be printed, such order as to costs may be made as the Court shall think By the general rules of the Circuit Courts of Appeals. "The counsel for the plaintiff in error or appellant shall print and file with the clerk of the court, at least six days before the case is called for argument, twenty copies of the record, unless a different order as to such printing is made by the court, either of its own motion, or upon application made at least ten days before the case is called for argument; and shall furnish three copies of the printed record to the adverse party at least six days before the argument. The parties may stipulate in writing that parts only of the record shall be printed, and the case may be heard on the part so printed, but the court may direct the printing of other parts of the record. If the record shall not have been printed when the case is reached in the regular call of the docket, the case may be dismissed. In case of reversal, affirm § 706. 1S. C. Rule 10, as amended October Term 1921: De Groot v. U. S., 5 Wall. 419, 18 L. ed. 700. Costs were enforced in Ball & Lock et Fastener Co. v. Kraetzer, 150 U. S. 111, 37 L. ed. 1019. See supra, § 704. ance, or dismissal with costs, the amount paid for printing the record shall be taxed against the party against whom costs are given." The cases in which records printed in the court below 2 C. C. A. Rule 23. By subsequent amendments in the First Circuit twenty-five copies were required; in the Second Circuit, fifteen; in the Fourth Circuit, forty; in the Fifth, Sixth and Seventh Circuits, twentyfive. See infra, Appendix V. S. D. N. Y. Rule 26. "The parties in any suit in which an appeal or writ of error has been taken may stipulate by themselves or their attorneys what shall be printed as the record on appeal. If any party wishes any document or statement included or omitted in the record, to the inclusion or omission of which any other party objects, a summary application may be made to the judge who heard the case, or, in his absence, to the judge attending to ex parte business, to determine whether such document or statement shall be included or omitted. The appellant or plaintiff in error may thereupon print as many copies of such record on appeal as may be required by the rules of the Circuit Court of Appeals. Such copies shall be printed in fair and legible type upon pages eleven inches long by seven inches wide, with a margin of at least two inches in width. One such printed copy may be presented to the clerk with a stipulation by the parties or their attorneys that such printed copy is a true transcript of the record as agreed on by the parties or as settled by the court. If such copy with such stipulation is presented the clerk shall certify the same as the transcript of record, without charge, except such as may be lawfully made for the certificate itself: If, however, the parties to any appeal or writ of error shall fail to execute and deliver to the clerk the stipulation above required the clerk shall, before certification, examine the printed documents tendered him for certification and ascertain that the mode of printing conforms to this rule, and that the printed pages do contain a transcript of the record as agreed upon by the parties or as settled by the court, as the case may be, and for such examination the clerk shall before certification, charge and collect for the use of the United States the sum authorized to be charged for such services, in addition to the lawful charge for his certificate. This rule shall not apply to the preparation of records on appeal in Equity cases which are governed by Rules 75, 76 and 77 of the Supreme Court Equity Rules, but after the statement provided for in Supreme Court Equity Rule 75 or 77 has been approved by the court or a judge thereof the appeal record may be printed and certified as set forth in this Rule if the parties shall stipulate that the printed copy presented to the clerk is a true transcript of the record as agreed on by the parties or as settled by the court." In one case the Circuit Court of Appeals extended the time to file the record until such a stipulation has been made or errors needing corrections had been shown. Meyers v. U. S., C. C. A., 218 Fed. 372. can be used in the court of review have been previously explained. Under special circumstances where there were serious objections to the enlargement of the defendant on bail, the court dispensed with the printing of the record and briefs upon a writ of error to review a judgment of conviction in a criminal prosecution. In an extraordinary case, when the appellant was too poor to print the record, the same dispensation has been made. in a civil suit. The expense of printing the record on appeal or in the court below may be paid from funds in the hands of a receiver, the record for the court below may be thus printed in such manner as to be used in the court of review should an appeal be subsequently taken by either party. All briefs and records for the use of the court must be printed in such form and size that they can be conveniently cut and bound so as to make an ordinary octavo volume.8 § 707. Argument of appeals and writs of error. The rules of the Supreme Court provide: "1. In all cases brought here on writ of error, appeal, or otherwise, the court will receive printed arguments without regard to the number of the cases on the docket, if the counsel on both sides shall choose to submit the same within the first ninety days of the term; and, in addition, appeals from the Court of Claims may be submitted by both parties within thirty days after they are docketed, but not after the first day of April; but thirty copies of the arguments, signed by attorneys or counsellors of this court, must be first filed. 2. When a case is reached in the regular call of the docket, and a printed argument shall be filed for one or both parties, the case shall stand on the same footing as if there were an appearance by counsel. 3. When a case is taken up for trial upon the regular call of the docket, and argued orally in behalf of only one of the parties, no printed argument for the opposite party will be received, unless it is filed before the oral argument begins, and the court will proceed to consider and decide the case upon the ex parte argument. 4. No brief or argument will be received, either 3 Supra, §§ 417, 417a. See Baldwin Co. v. R. S. Howard Co., C. C. A., Nov. 10, 1919. 4 Morse v. U. S., C. C. A., 168 Fed. 49. 5 Re Friedman, C. C. A., 161 Fed. 260, 262, in bankruptcy. See § 417, 667, supra. 6 Ferguson v. Dent, 46 Fed. 88. 7 Dent v. Ferguson, 131 U. S. 397. 8 S. C. Rule 31; C. C. A. Rule 26. |