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RULES OF THE SUPREME COURT.
Adopted at the January Term thereof, A. D. 1871. I. In all cases where an appeal is perfected, and the statement settled (if there be one) twenty days before the commencement of the next succeeding term of this court, the transcript of record shall be filed on or before the first day of such term.
II. If the transcript of the record is not filed within the time prescribed, the appeal may be dismissed, on motion, upon satisfactory evidence of such omission.
A cause so dismissed may be restored during the same term, upon good cause shown, on notice to the respondent.
III. On such motion to dismiss the appeal, there shall be presented the certificate of the clerk below, under the seal of the court, certifying the amount or character of the judgment or order appealed from ; the date of its rendition; the fact and date of the filing of the notice of appeal; the fact and date of filing the undertaking on appeal; the fact and time of settlement of the statement, if there be one; and also that the appellant has received a duly certified transcript, or that such transcript has not been requested by appellant; or, if requested, that appellant has not paid the fees therefor, if such payment have been demanded.
IV. All transcripts of records hereafter sent to this court shall be on paper of uniform size, according to a sample to be furnished by the clerk of this court, with a blank margin one and a hali inches wide, at the top, bottom and side of each page, and all pleadings, proceedings and evidence shall be chronologically arranged, and the pages of the transcript shall be numbered, and but one side of the leaves shail be written upon.
V. Each transcript shall be prefaced with or have annexed an alphabetical index to its contents, specifying the page of each separate paper, order or proceeding, and of the testimony of each witness, and shall have blank or fly sheet covers.
VI. The transcript shall be fastened together on the left side of the pages, so that the same may be secured and every part conveniently read.
VII. The transcript shall be written in a fair, legible hand, and each paper or order shall be separately inserted.
VIII. The party filing the transcript may, if he so desire, have the same printed, but the expense of printing shall not be allowed or taxed as costs.
IX. No transcript which fails to conform to the requirements of these rules shall be filed by the clerk.
X. The transcript, on appeal from a final judgment, shall contain copies of the notice of appeal; the undertaking or undertakings executed by appellant on the appeal; the pleadings on which are formed the issues tried in the cause; the statement, if there be one; and such other parts of the judgment roll as are necessary to present or explain the points relied on, and no more.
On appeal from a judgment rendered on an appeal, or from an order, the transcript shall contain copies of the notice of appeal; the undertaking or undertakings filed by appellant; the judgment or order appealed from, and of the papers used on the hearing in the court.
XI. The appellant shall be charged with the duty of having the transcript perfected in accordance with the statute and these rules : Provided, That if it shall appear to the satisfaction of the court that the appellant has filed his præcipe in time with the clerk of the court below, directing the preparation of the transcript, and specifying what portions of the record the same shall contain, then, in case the transcript shall be imperfect and shall not conform to the requirements of the præcipe, and sufficient reason for such nonconformity does not appear, the appeal shall not be dismissed, and on motion of the appellant, a rule shall be entered upon the clerk below to correct the transcript within such time as may be allowed by the court below.
XII. For the purpose of correcting any error or defect in the transcript, either party may suggest the same in writing, and, upon good cause shown, obtain an order that the proper clerk certify to this court the whole or part of the record, as may be required. If the attorney or counsel of the adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion must be
accompanied by an affidavit, showing the existence of the alleged error or defect.
XIII. Proof of service of notice of appeal on the respondent may be made by affidavit, and in all cases proof of service of such notice or waiver thereof shall be filed in this court five days at least before the commencement of the term to which the appeal is taken.
XIV. Exceptions to the transcript, statement, undertaking on appeal, notice of appeal, or to its service, or proof of service, or any technical objection to the record affecting the right of the appellant to be heard on the errors assigned, must be taken at least one day before the day on which the cause may be set down for hearing, and must be noted in writing and filed at least one day before the argument, unless the appellant otherwise consent, but in all cases such objection must be presented to the court before the argument on the merits.
XV. Upon the death or disability of a party, or transfer of his interest in the suit, pending an appeal, such fact shall be suggested in writing to the court; and if the cause of action survive or continue, upon motion of the legal or personal representative of such party, or of any party to the record, an order shall be made substituting such representative in the cause, and the cause shall proceed as in other cases.
XVI. The calendar of each term of this court shall consist only of those causes in which the transcript shall have been filed in this court five days before the commencement of the term, unless by written consent of the parties: Provided, That all cases in which the appeal is perfected as provided in rule first, and the transcript is not filed five days before the first day of the term, may be placed on the calendar, on motion of the respondent, upon the filing of the transcript, during the first week of the term.
XVII. Causes shall be placed on the calendar in the order in which the transcripts are filed, and, except when brought to hearing upon notice or agreement of the parties, shall be disposed of in the order in which they appear upon the calendar.
XVIII. The appellant and respondent shall furnish to each other a copy of his points and authorities, at least one day before the commencement of the argument; and, at or before the commencement of the argument, shall furnish to each of the justices a copy of the same, and shall file a copy of the same with the clerk; or either party may file one copy thereof with the clerk, who shall
cause the requisite copies to be made, and in case either party shall fail to furnish such copy to the opposite party, as required by this rule, he shall be deemed to waive his right to argue such cause orally, except by consent; and no brief of his points and authorities, not filed in accordance with this rule, will be considered by the court, except after at least one day's notice of the filing of the same to the opposite party, who shall have such time as may be allowed by the court, after the filing thereof, to file a reply thereto.
XIX. When briefs or arguments are filed, one copy shall be delivered to the adverse party, one to each of the justices, and one to the reporter.
XX. No more than two counsel will be heard upon a side, and not over one and a half hour on a side for argument will be allowed, unless permission be asked and allowed before the argument commences.
XXI. The records and reports must, in all cases, show whether a decision was made by a full bench, and which of the judges, if either, dissented therefrom.
XXII. When the court takes a case under advisement, it shall file its opinion at the next term thereafter. No cause is decided until the opinion in writing is filed with the clerk.
XXIII. In any case, if the court is satisfied from the record that the appeal was taken for delay, such damages shall be awarded as may, under the circumstances, be proper, and as shall tend to prevent the taking of appeals for delay.
XXIV. Appeals in criminal cases shall take precedence of all other business.
XXV. When a judgment of the supreme court is rendered, such judgment and the opinion, when finally corrected, must be recorded, and a certified copy of the judgment, with proper instructions, must be forth with remitted to the clerk of the district court in which the judgment appealed from was rendered, and a copy of the opinion shall be remitted, upon application of either party, and payment of the costs thereof, within ten days after the close of the term at which such opinion was filed.
XXV In case any justice of this court, while holding a district court, shall refuse to allow an exception, or to certify to a statement, in accordance with facts, upon presentation to this court, or to any two justices thereof, in vacation, of a petition verified by the affidavit of any person aggrieved thereby, or by the attorney of such