When a statute of a State is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length. 3. The counsel for a defendant in error or an appellee shall file with the clerk thirty printed copies of his argument, at least one week before the case is called for hearing. His brief shall be of like character with that required of the plaintiff in error or appellant, except that no specification of errors shall be required, and no statement of the case, unless that presented by the plaintiff in error or appellant is controverted. 4. When there is no assignment of errors, as required by section 997 of the Revised Statutes, counsel will not be heard, except at the request of the court; and errors not specified according to this rule will be disregarded; but the court, at its option, may notice a plain error not assigned or specified.15 5. When, according to this rule, a plaintiff in error or an appellant is in default, the case may be dismissed on motion; and when a defendant in error or an appellee is in default, he will not be heard, except on consent of his adversary, and by request of the court. 6. When no oral argument is made for one of the parties, only one counsel will be heard for the adverse party. 7. No brief or printed argument, required by the foregoing sections, shall be filed by the clerk unless the same shall be accompanied by satisfactory proof of service upon counsel for the adverse party. 8. Every brief of more than 20 pages shall contain on its front fly leaves a subject index with page. references, the subject index to be supplemented by a list of all

reported is improper. Re Kerner, C. C. A., 250 Fed. 993.

15 See supra, § 701; U. S. R. S., § 997, and S. C. Rule 35; C. C. A. Rules 11, 24, § 701; Treat v. Jemison, 20 Wall. 652, 22 L. ed. 449; Ryan v. Koch, 17 Wall. 19, 21 L. ed. 611; Boston M. Co. v. Eagle M. Co., 115 U. S. 221, 29 L. ed. 392; Hunt v. Blackburn, 127 U. S. 774, 32 L. ed. 323; Stevenson v. Barbour, 140 U. S. 48, 35 L. ed. 338; Mann v. Dempster, C. C. A., 181 Fed. 76; Western Union Tel. Co. v. Winland, C. C. A., 182 Fed.

493; Ireton v. Pennsylvania Co., C. C. A., 185 Fed. 84. The appellate court will take notice of a question affecting the jurisdiction, although not specified in the assignment of errors, and in such a case may direct that briefs be filed on that point. Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co., 116 U. S. 472, 29 L. ed. 696; Perez v. Fernandez, 202 U. S. 80, 100, 50 L. ed. 942, 949; A. Santaella & Co. v. Otto F. Lange Co., C. C. A., 155 Fed. 719; Yeandle v. Pennsylvania R. Co., C. C. A., 169 Fed. 938.

cases referred to, alphabetically arranged, together with references to pages where the cases are cited." 16 The same practice prevails in this respect in the Circuit Courts of Appeals, except that the time of filing briefs and the number of copies varies in the different circuits, and that an index and table of cases is not usually required.17 Where a brief contains scandalous matter, irrelevant to the questions raised by the writ of error or appeal, it may be stricken from the file.18 A constitutional question not raised in the court below cannot,19 except in an extraordinary case, 20 be raised for the first time in the appellate court. In the Supreme Court the brief must be of octavo size and all of the same, including the quotations, must be printed in clear type (never smaller than small pica), and on unglazed paper.21 The rules of the different Circuit Courts of Appeals have certain different regulations upon this subject.22 No printed argument will be received after the oral argument begins or after a case has been submitted, except upon leave granted in open court after notice to opposing counsel.23

16 S. C. Rule 21. Walton v. Wild Goose Min. & Trading Co., C. C. A., 123 Fed. 209; Etna Indemnity Co. v. J. R. Crowe Coal & Min. Co., C. C. A., 154 Fed. 545; Davidson S. S. Co. v. U. S., C. C. A., 142 Fed. 315; Crosby v. Emerson, C. C. A., 142 Fed. 713; A. Santaella & Co. v. Otto F. Lange Co., C. C. A., 155 Fed. 719; Chicago Great Western Ry. Co. v. Egan, C. C. A., 159 Fed. 40.

17 See Appendix V, infra. For a case where the Court of Appeals for the Ninth Circuit refused to consider a brief signed by a counsel not admitted, nor qualified for admission, to its bar, see Piper v. Cashell, C. C. A., 118 Fed. 1019. Deposit in the mail ten days before the argument is sufficient if the brief is duly addressed. RussoChinese Bank v. Nat. Bank of Commerce of Seattle, Wash., C. C. A., 187 Fed. 80.

18 Green v. Elbert, 137 U. S. 615, 34 L. ed. 792; Yellow Poplar Lumber Co. v. Chapman, 173 U. S. 705, a petition for a writ of certiorari; Royal Arcanum v. Green, 237 U. S. 531, 546; Smith v. Simpson, C. C. A., 140 Fed. 712, see U. S. Ex rel. Brown v. Lane, 232 U. S. 598. See Cox v. Wood, 247 U. S. 3. Where a party's brief contained argument based on a letter from opposing counsel, written after decree and offering a compromise, he was denied costs. Malleable Iron Range Co. v. Lee, C. C. A., 263 Fed. 896. 19 Western Union Tel. Co. v. Winland, C. C. A., 182 Fed. 493.

20 See Weems v. U. S., 217 U. S. 349, 54 L. ed. 793.

21 S. C. Rule 31.
22 See Appendix V, infra.
23 S. C. Rule 20.

When there is no appearance for the plaintiff in error when the case is called for argument, the defendant may have him called and have the writ of error or appeal dismissed, or may open the record and pray for an affirmance.24 When the defendant in error then fails to appear, the court may proceed to hear argument on the part of the plaintiff, and give judgment according to the right of the cause.25 When a case is reached and no appearance is entered for either party, the case is dismissed at the cost of the plaintiff.26 A printed argument filed on behalf of either party is equivalent to an appearance on his behalf.27 In the Supreme Court when no oral argument is made for one of the parties, only one counsel will be heard for the adverse party.28 Otherwise, each party is entitled to be heard by two counsel and no more, except by leave of the court.29 In the Supreme Court one hour on each side is allowed for the argument of an appeal or writ of error, and one hour on the argument of a motion which is heard orally; but in cases certified from the Circuit Courts of Appeals, cases involving solely the jurisdiction of the courts below and writs of error brought by the United States to review the quashing or dismissal of an indictment, forty-five minutes only on each side was allowed.80 In the Circuit Courts of Appeals the matter is regulated by their respective rules. By leave of the court granted before the argument begins more time may be allowed.81 The time may be apportioned between counsel on each side at their discretion; but a fair opening of the case must be made by the party having the opening and closing arguments.32 The plaintiff in error or

24 S. C. Rule 16; Hunt v. Blackburn, 127 U. S. 774, 32 L. ed. 323; Stevenson v. Barbour, 140 U. S. 48, 35 L. ed. 338; Boston M. Co. v. Eagle M. Co., 115 U. S. 221, 29 L. ed. 392. A motion to set aside a judgment of affirmance for a default, which would otherwise be excused, will be denied if it appears that the judgment must be affirmed on the merits. Treat v. Jemison, 131 U. S. cxxxv, 23 L. ed. 134. 25 S. C. Rule 17.

26 S. C. Rule 18; supra, § 512.

appellant is entitled to open and conclude the case.88 Where there are cross-appeals, they are argued together as one case, and the plaintiff below has the right to open and conclude the argument. No persons not appearing in the record have the right to be heard on an appeal or writ of error,35 but the trustee of a bankrupt may be heard, as well as the bankrupt, on a writ of error brought by the bankrupt of which the trustee is entitled to the benefit.36 The court of review may allow a hearing to a person interested in a decision who is not a party and was not entitled to intervene below; 37 but in such a case he is usually only permitted to file a brief as amicus curiae.88 In a case in which the United States are parties, the court will rarely hear counsel employed by another Executive Department in opposition to the Attorney-General or his representative.39 Except perhaps in admiralty,40 appellees who have perfected no crossappeal cannot be heard except in support of the decree below.41 Where a board of county commissioners alone brought a writ of error to an order for a mandamus against them and the clerk and treasurer of the county, who did not join in the writ, the board was not allowed to allege an error affecting the clerk and treasurer, but not the board.42 The appellate court may refuse

33 S. C. Rule 22; C. C. A. Rule 25. 34 S. C. Rule 22; C. C. A. Rule 25; L. Bucki & Son L. Co. v. Atl. Lumber Co., C. C. A., 93 Fed. 765.

35 Harrison v. Nixon, 9 Pet. 483, 9 L. ed. 201; U. S. v. Patterson, 15 How. 10, 14 L. ed. 578; The Mabey, 10 Wall. 419, 19 L. ed. 963. The William Bagley v. U. S., 5 Wall. 377, 18 L. ed. 583.

36 Hill v. Harding, 107 U. S. 631, 27 L. ed. 493.

37 U. S. v. Terminal R. R. Ass'n, 236 U. S. 194.

38 Veitia v. Fortuna Estates, C. C. A., 240 Fed. 256.

39 The Gray Jacket, 5 Wall. 370, 18 L. ed. 653.

40 Irvine v. The Hesper, 122 U. S. 256, 30 L. ed. 1175; Munson S.

S. Line v. Miraman S. S. Co., C. C.
A., 167 Fed. 960.

41 The Slavers, 2 Wall. 383, 17 L. ed. 911; The Stephen Morgan, 94 U. S. 599, 24 L. ed. 266; Loudon v. Taxing Dist. of Shelby County, 104 U. S. 771, 26 L. ed. 923; Gage v. Pumpelly, 115 U. S. 454, 29 L. ed. 449; O'Neil v. Wolcott Min. Co., C. C. A., 174 Fed. 527; Philadelphia Casualty Co. v. Fechheimer, C. C. A., 220 Fed. 401; Moller v. Herring, C. C. A., 255 Fed. 670; Davey Tree Expert Co. v. Van Billiard, C. C. A., 255 Fed. 781. Crosserrors cannot be presented by a party who is neither plaintiff in error nor appellant. Midland Valley R. Co. v. Fulgham, 181 Fed. 91.

42 Cherokee County Comrs' V.

to hear argument in support of a writ of error in a criminal case where the plaintiff in error has put himself beyond the reach of process of the court below.48 "No justice or judge before whom a cause or question shall have been tried or heard in a District Court shall sit in the trial or hearing of such cause or question in the Circuit Court of Appeals." 44 § 708. Rehearings. In the Supreme Court, "A petition for rehearing after judgment can be presented only at the term at which judgment is entered, unless by special leave granted during the term; and must be printed and briefly and distinctly state its grounds, and be supported by certificate of counsel; and will not be granted, or permitted to be argued, unless a justice who concurred in the judgment desires it, and a majority of the court so determines." The practice in the Circuit Courts of Appeals is substantially the same; but, in some of the circuits, the time of filing the petition is limited to thirty days or a month after the entry of the judgment or the receipt by the clerk of the printed opinion, and in the Fifth Circuit twenty days. No rehearing or reargument will be allowed when not applied for till after the term at which a cause is decided, unless by special leave of the court granted during the term.4

Wilson, 109 U. S. 621, 27 L. ed.
1053. See Indiana So. R. Co. v.
Liverpool, L. & G. Ins. Co., 109 U.
S. 168, 27 L. ed. 895.

43 Smith v. U. S., 94 U. S. 97, 24 L. ed. 32. On an appeal from an order upon a petition for the writ of habeas corpus, where the petitioner had in pursuance of the order been placed without the jurisdiction of the court and of the United States, the Supreme Court dismissed the writ without an examination into its merits. Cheiong Al Moy v. U. S., 113 U. S. 216, 28 L. ed. 983.

44 26 St. at L. 827, § 3; Am. Construction Co. v. Jacksonville, T. & K. R. Co., 148 U. S. 372, 37 L. ed. 486; Morgan v. Dillingham, 174 U. S. 153, 43 L. ed. 930, supra, § 693.

2

§ 708. 1S. C. Rule 30.

2 C. C. A. Rule 29. For a case where this rule was disregarded, see Omaha Electric Light & Power Co. v. City of Omaha, C. C. A., 216 Fed. 848, 856.

3 See infra, Appendix V.

4 Hudson v. Guestier, 7 Cranch. 1, 3 L. ed. 249; Bushnell v. Crooke Min. & Sm. Co., 150 U. S. 82, 37 L. ed. 1007; Williams v. Conger, 131 U. S. 390, 33 L. ed. 201; S. C. Rule 30; C. C. A. Rule 29. Kirchberger v. American Acetylene Burner Co., C. C. A., 142 Fed. 169. The filing during the term is in due time although because of an immediate vacation it cannot be heard till the following term. Oehring v. Fox Typewriter Co., C. C. A., 254 Fed. 774. Where the Cir