CASES

ARGUED AND DETERMINED

IN THE

UNITED STATES CIRCUIT COURTS OF APPEALS AND THE
CIRCUIT AND DISTRICT COURTS.

BLANKS et al. v. KLEIN et al.

UNIV. OF CALIFORNIA

(Circuit Court of Appeals, Fifth Circuit. November 27, 1891.)

1. APPEAL-DIMINUTION OF RECORD-CERTIORARI.

On appeal to the circuit court of appeals the clerk of the court below, being the custodian of the record, is to determine, in the absence of agreement of counsel, what evidence shall be included in the transcript following the note of evidence made under the rule of court: and if any omissions are found relief can be had by certiorari for diminution of the record, as provided by court rule 18.

& SAME.

A transcript which contains all the parts of a deposition called for by either party is sufficient

Appeal from Circuit Court, Southern District of Mississippi.

Suit by A. L. Blanks and others against E. B. Klein and others, Plaintiff appeals. Heard on motion for alternative mandamus to clerk to certify copy of record. Motion denied.

Wade R. Young, for petitioners.

Mayre Dabney, opposed.

Before PARDEE, Circuit Judge, and LOCKE and BRUCE, District Judges.

LOCKE, District Judge. This motion coming on upon notice, and the parties appearing and presenting the facts of the case, we are able to decide the matter without issuing the writ or waiting for a return. The real question appears to be as to what should be contained in the record, and not as to whether the clerk should be ordered to certify the transcript. The clerk is the custodian of the record, and, in the absence of an agreement by counsel, it is for him to determine what evidence shall be included in the transcript following the note of evidence made under the rule of court. Upon the record being filed, if any omission or addition is found, v.49F.no.1-1