Nor, at least in an equity case, after the cause has been remitted to the court below,5 unless the mandate has been recalled. Nor, after the decision of any case, unless a justice who concurred in the decision moves for a rehearing, even if the court was equally divided," and not then unless the proposition receives the support of a majority of the court.8 The proper practice for a party who desires a rehearing is to submit without argument a brief printed petition or sugges tion of the points thought important which must be supported by the certificate of counsel that in his opinion the petition is well founded and is not made for the purpose of delay. If upon such petitioner's suggestion, any judge who concurred in the decision thinks proper to move for a rehearing, the motion will be considered.10 Otherwise the motion will be denied as of course, except in the Circuit Court of Appeals for the Seventh cuit Court of Appeals rule required that the petition for a rehearing be filed within thirty days after the opinion was filed, it was held that the rule should not be enforced thereafter when an authority, upon which the decision was based had been reversed during the same term. Unitype Co. v. Long, C. C. A., 149 Fed. 196. 5 Browder v. McArthur, 7 Wheat. 58, 5 L. ed. 397; Sibbald v. U. S., 12 Pet. 488, 9 L. ed. 1167; Washington Bridge Co. v. Stewart, 3 How. 413, 11 L. ed. 658; Peck v. Sanderson, 18 How. 42, 15 L. ed. 262. 6 Killian v. Ebbinghaus, 111 U. S. 798, 28 L. ed. 593; Ex parte Crenshaw, 15 Pet. 119, 10 L. ed. 682; U. S. v. Gomez, 23 How. 326, 16 L. ed. 552. Where the rule required mandates to be retained a specified time after the decision, it was held that a motion for a reargument would not be entertained after that time, unless it was shown that counsel were not notified of the decision or that the grounds of the motion could not have been easily ascertained within the time. Crabtree v. McCurtain, C. C. A., 66 Fed. 1. 7 Brown v. Aspden, 14 How. 25, 14 L. ed. 311; U. S. v. Knight, 1 Black. 488, 17 L. ed. 80; Public Schools v. Walker, 9 Wall. 603, 19 L. ed. 650; Shreveport v. Holmes, 125 U. S. 694, 31 L. ed. 854; s. c. Rule 30; C. C. A. Rule 29. 8 Ambler v. Whipple, 23 Wall. 278, 23 L. ed. 127. Very rarely then in the Supreme Court unless an important constitutional question is involved. Shreveport v. Holmes, 125 U. S. 694. 9 S. C. Rule 30; C. C. A. Rule 29; Hinds v. Keith, C. C. A., 57 Fed. 10; U. S. v. The Dago, C. C. A., 63 Fed. 182; Gregory v. Pike, C. C. A., 67 Fed. 837; supra, § 445. For a form, see New Orleans v. Walker, 176 U. S. 92, 44 L. ed. 385. 10 Public Schools v. Walker, 9 Wall. 603, 19 L. ed. 650. Circuit. No reply to the application is allowed to the other side; nor does the court usually write an opinion when the petition is denied.12 A rehearing has been granted at the request of a stranger to the record whose rights were affected by the decision.13 The petition should not set forth matter not disclosed by the record; 14 but a subsequent decision of another tribunal which is binding upon the court may be a sufficient rea 11 C. C. A. Rule 7th Ct. 29. See Appendix. 12 Ambler v. Whipple, 23 Wall. 278, 23 L. ed. 127. If the hearing in the appellate court was on an imperfect record, a large part of the material evidence which was before the court below was omitted from the transcript, and there was no laches on the part of the appellee in failing to examine and perfect the record before the hearing; a strong case for a reargument was presented. Ambler v. Whipple, 23 Wall. 278, 23 L. ed. 127. A rehearing was granted on the ground that the decree brought up by the appeal was not that recited in the prayer for an appeal, but one rendered subsequently thereto, and merely in execution of it; so that the parties might present all the questions which arose both on the original transcript and upon the transcript as corrected. Chicago & V. R. Co. v. Fosdick, 106 U. S. 47, 80, 27 L. ed. 47, 59. A rehearing was refused when the application was based on the ground that the record of another suit, the decree in which had not been pleaded and was not rendered upon the merits, should be embodied in the transcript. Morgan County v. Allen, 103 U. S. 515, 26 L. ed. 504. A rehearing will ordinarily be refused when asked upon a theory inconsistent with the original argument and not then presented. Merriman v. Chicago & E. I. R. Co., C. C. A., 66 Fed. 663; Reece Folding Mach. Co. v. Fenwick, C. C. A., 140 Fed. 287, 292. A rehearing will not be granted merely because the case is one of importance. Canfield v. U. S., C. C. A., 66 Fed. 18. And very rarely by a Circuit Court of Appeals in a case where its decision is not final. Texas & Pac. Ry. Co. v. Gentry, C. C. A., 57 Fed. 422. A rehearing will not be granted because the court misquoted testimony in its opinion, where such misquotation did. not affect the result. Torrent v. Duluth Lumber Co., 32 Fed. 229. Nor when a dismissal was directed for want of jurisdiction because of statements in the opinion when discussing the merits. Supreme Council of Royal Arcanum v. Hobart, C. C. A., 244 Fed. 385. 13 Alexander v. Fidelity Trust Co., C. C. A., 249 Fed. 1. 14 Chapman & Dewey Lumber Co. v. St. Francis Levee District, 234 U. S. 667; Omaha Elec. Light & Power Co. v. City of Omaha, C. C. A., 216 Fed. 848. Not a subsequent intervention which gave the necessary diversity of citizenship, Supreme Council of Royal Arcanum v. Hobart, C. C. A., 244 Fed. 385. It has been said that the court may consider a disclaimer of a claim under a patent filed by the appellant pending the son.15 The court may upon its own motion grant a rehearing.16 It has been said that the effect of granting a rehearing is to make the cause stand as if no judgment had been entered in the court of review;17 but an equal division of the court upon a rehearing of a judgment of reversal results in a reversal, not in an affirmance.18 § 709. Further proof on appeal. On an appeal in equity no new evidence can be taken either below or above for the consideration of the appellate court. The same rule applies to proceedings on writs of error to review judgments at common law. Matter of record or documentary evidence which cannot be contradicted is usually admitted in support of a decree; but not in order to secure a reversal. A certiorari may issue to mandate. U. S. Light & H. Co. v. Safety Car H. & L. Co., C. C. A., 202 Fed. 915. 15 A rehearing on appeal cannot be granted for newly discovered evidence. Maxwell Land Grant Case, 122 U. S. 365, 30 L. ed. 1211. Utah Power & Light Co. v. U. S., C. C. A., 242 Fed. 924. 16 James v. Clements, C. C. A., 217 Fed. 51. 17 Hook v. Mercantile Tr. Co., C. C. A., 95 Fed. 41. 18 Garmichael v. Eberle, 177 U. S. 63, 44 L. ed. 672. § 709. 1 Holmes v. Trout, 7 Pet. 171, 8 L. ed. 647; Mitchell v. U. S., 9 Pet. 711, 9 L. ed. 283; Pacific R. Co. of Mo. v. Ketchum, 95 U. S. 1, 24 L. ed. 347; Boone v. Chiles, 10 Pet. 177, 9 L. ed. 388. 2 Thornton v. Carson, 7 Cranch. 596, 601, 3 L. ed. 451; Turner v. Schaeffer, C. C. A., 249 Fed. 654. 3 Hart Steel Co. v. Railroad Supply Co., 244 U. S. 294; G. Ricordi & Co. v. Columbia Graphophone Co., C. C. A., 263 Fed. 354; Dunham v. Townshend, 118 N. Y. 281, 286. 4 Witzel v. Berman, C. C. A., 212 3 Fed. 734; (anticipatory patents) Barber v. Otis Motor Sales Co., C. C. A., 240 Fed. 723; Stillwell v. Carpenter, 62 N. Y. 639; Day v. Town of New Lots, 107 N. Y. 157. It has been said: "An appellate court may avail itself of authentic evidence outside of the record before it of matters occurring since the decree of the trial court when such course is necessary to prevent a miscarriage of justice, to avoid a useless circuity of proceeding, to preserve a jurisdiction lawfully acquired, or to protect itself from imposition or further prosecution of litigation where the controversy between the parties has been settled, or for other reasons has ceased to exist." Ridge v. Manker, C. C. A., 132 Fed. 599, 601, per Hook, C. J. Citing Chamberlain v. Cleveland, 1 Black. 419, 17 L. ed. 93; Lord v. Veazie, 8 How. 251, 12 L. ed. 1067; Wood Paper Co. v. Heft, 8 Wall. 333, 19 L. ed. 379; Board of Liquidation v. Railroad Co., 109 U. S. 221, 3 Sup. Ct. 144, 27 L. ed. 916; Dakota v. Glidden, 113 U. S. 222, 5 Sup. Ct. 428, 28 L. ed. 981; Little v. Bowers, 134 U. bring before the court of review, subsequent proceedings in the court of first instance that affect a judgment or decree, from which an appeal is taken. Further proof upon appeals in admiralty is previously considered." § 710. Amendments of the original record upon appeal or error. The court of review may allow an amendment of the record below alleging facts which show the requisite diversity of citizenship 1 or which obviate the objection that a suit in equity should have been brought at law or an action at law should have been brought in equity. Otherwise not, except by consent. Or when the parties have treated the case below as if an amendment were unnecessary or had been made. It has been held that the court of review cannot permit an amendment S. 547, 10 Sup. Ct. 620, 33 L. ed. 1016; Washington and Idaho Railroad Co. v. Coeur D'Alene R. & N. Co., 160 U. S. 101, 16 Sup. Ct. 239, 40 L. ed. 355. In Bryar v. Campbell, 177 U. S. 649, 20 Sup. Ct. 794, 44 L. ed. 926; documentary evidence of a decree of a State court, which was res adjudicata, was admitted in evidence by a Circuit Court of Appeals upon an appeal from a decree in equity. Where a material document had been admitted, which the complainant-appellant, through oversight, had failed to offer in evidence below, the case was remanded with instructions that the bill be dismissed unless he pays the costs in both courts within sixty days and submit to the court of first instance his further proofs upon this question, whereupon the case should be reopened for a rehearing in the court below to the extent that equity might require. St. Claire Foundry Co. v. Union Jack Co., C. C. A., 184 Fed. 989. Upon proof of a recent discovery of an anticipatory patent the court dismissed the appeal without preju dice and remanded the cause with a direction that it be reopened for additional proof. Firestone Tire & Rubber Co. v. Seiberling, C. C. A., 245 Fed. 937. 5 Barton v. Petit, 7 Cranch. 288, 3 L. ed. 347. 6 Supra, § 592a. § 710. 138 St. at L. 956, Comp. St. § 1251c, quoted supra, § 206; Swayne & Hoyt v. Barsch, C. C. A., 226 Fed. 581. 238 St. at L. 956, Comp. St. § 1251a, quoted supra, § 206. 3 Pacific R. Co. of Mo. v. Ketchum, 95 U. S. 1, 24 L. ed. 347; Yeandle v. Pa. R. Co., C. C. A., 169 Fed. 938. But see Williams v. Molther, C. C. A., 198 Fed. 460. 4 Kennedy v. Georgia State Bank, 8 How. 586, 12 L. ed. 1209. 5 Tremolo Patent, 23 Wall. 518, 23 L. ed. 97; Confectioner's Mach. & Mfg. Co. v. Racine Eng. & Mach. Co., 163 Fed. 914; Old Dominion Copper Mining & Smelting Co. v. Lewisohn, 176 Fed. 745; Pa. Steel Co. v. N. Y. City Ry. Co., 190 Fed. 602; McEldowney v. Card, 193 Fed. 475. striking out a proper but unnecessary party whose presence defeats the jurisdiction. § 711. Decisions. In general. On proceedings upon a writ of error to a State Court or to review the final judgments or decrees of the Supreme Court of the Territory of Hawaii, or of the Supreme Court of Porto Rico, the Supreme Court may reverse, modify, or affirm the judgment or decree below; and has discretionary power to award execution, or remand the case to the court to which the writ of error issued.1 The Supreme Court or a Circuit Court of Appeals may affirm, modify or reverse any judgment, decree or order of a District Court, lawfully brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to be had by 6 Thomas v. Anderson, C. C. A., 223 Fed. 41. § 711. 1 Jud. Code, § 237, 36 St. at L. 1156, 38 St. at L. 790, 39 St. at L. 726; re-enacting U. S. R. S., $709; Comp. St., § 1214; Jud. Code, § 246, 36 St. at L. § 1158, 38 St. at L. 804, Comp. St., § 1223. See supra, $$ 691b, 692. The decisions of the Supreme Court of Porto Rico upon questions of local law will rarely be disturbed. Richardson v. Fajardo Sugar Co., C. C. A., 237 Fed. 195; Philippine Sugar Estates Development Co. v. Government of the Phil. Islands, 247 U. S. 385, 38 Sup. Ct. 513, 62 L. ed. 1177; supra, § 691b. Upon writs of error to review judgments under the Federal Employers' Liability Act of April 22, 1908, 35 St. at L. 65, Comp. St., § 8657; the Supreme Court ordinarily considers only assignments in relation to practice pleading an evidence which involve the construction of the statute. Central Vermont Ry. v. White, 238 U. S. 507; unless there is a clear and palpable error, Southern Ry. Co. v. Gadd, 233 U. S. 572; Yazoo & Mis- See |