if it is proper to do so.10 This fact must appear on the record,11 and where it does not appear the court will refuse to review assignments of error,12 although the omission to take exceptions was in conformity with the practice of the trial court,13 or in conformity with a rule thereof.14. § 1934. Taking of appeal in admiralty. Appeal is the proper mode of procuring review in admiralty. Under R. S. § 1012 appeals are governed by the same general rules and regulations as writs of error.16 Since the act of 1891, admiralty cases are appealable to the circuit court of appeals,17 and in some circuits special rules governing the practice are in force, and should be consulted by the practitioner. [a-[e] Author's section. [a] Rules in second circuit. In the second circuit, which includes the southern district of New York, where the great bulk of admiralty causes arise, admiralty rules were adopted by the circuit court of appeals May 20, 1892, and amended Oct. 5, 1892. Some of them respecting the record and apostles on appeal are given in a subsequent chapter.18 The first rule provides that "An appeal to the circuit court of appeals shall be taken by filing in the office of the clerk of the district court and serving on the proctor of the adverse party, a notice, signed by the appellant or his proctor, that the party appeals to the circuit court of appeals from the decree complained of. The appeal shall be heard on the pleadings and evidence in the district court, unless the appellate court, on motion, otherwise order." It is further provided by the third admiralty rule in the second circuit that "The appellant may also, at his option, state in his notice of appeal that he desires only to review one or more questions involved in the cause, which questions must be clearly and succinctly stated; and he shall be concluded in this behalf by such notice, and the review upon such an appeal shall be limited to such question or questions." [b]-what general rules deemed admiralty rules. "The following of the general rules of this court, and no others, shall be deemed admiralty rules, viz.: Rules 3, 4, 5, 6, 7, 9, 11, 12; section 4 of rule 10 Price v. Parkhurst, 53 Fed. 313, 3 C. C. A. 551. 13 Little Rock, etc. Co. v. Dallas County, 66 Fed. 523, 13 C. C. A. 620: 11 Phelps v. Mayer, 15 How. 161, Johnson v. Garber, 73 Fed. 525, 19 14 L. ed. 643. 12 New England, etc. Co. v. Catholicon Co. 79 Fed. 296, 24 C. C. A. 595; Stone v. United States, 64 Fed. 667, 12 C. C. A. 451; Merchants' Exchange Bank v. McGraw, 76 Fed. 936, 22 C. C. A. 622. C. C. A. 556. 14 Western Union Co. v Baker, 85 Fed 691, 29 C. C. A. 392. 16 Ante, § 1919 18 Post, §§ 1962, et seq. 14; rules 15, 16, 17, 18, 19, 20, 21, 22; amended rule 23; section 5 of rule 24; rules 25, 26, 27, 28, 29; section 4 of rule 30; rules 31, 32, 34 and 36."19 "In all matters in civil causes of admiralty and maritime jurisdiction, not expressly provided for by the foregoing rules of this court, the rules of practice of the district court of the district in which the cause was decided, being in force at the time, not being inconsistent with these rules, will be adopted so far as may seem proper."20 [d] extension of time. "The time specified in the foregoing rules [i. e. admiralty rules on appeal in second circuit] for any proceeding may be extended by order of a judge of this court."1 [e] Rules in the ninth circuit. In the ninth circuit admiralty rules were adopted by the circuit court of appeals of that circuit on May 21, 1900, to go into effect on the first Monday of the following October. Some of them respecting the record and apostles on appeal and respecting the appeal bond are given in following sections.2 The first rule is identical with the first rule in the second circuit, as set forth above. The effect of this rule has been stated by the court as follows: "The rule so far modifies rule 11 of the General Rules, 31 C. C. A. CXLVI. 90 Fed. CXLVI, that a petition for an appeal and the allowance thereof is not required in an admiralty case, nor is the assignment of errors required to be filed with notice of appeal. The assignment of errors must, however, be sent up to the appellate court with the apostles, as required in rule 4 of the admiralty rules.”+ Rule three of the ninth circuit is identical with rule three of the second circuit as above set forth,5 and rule twelve with rule seventeen.6 1935. Amendments in prize appeals. The Supreme Court may, if in its judgment the purposes of justice require it, allow any amendment, either in form or substance, of any appeal in prize causes. R. S. § 1006, U. S. Comp. Stat. 1901, p. 714. The above section was originally enacted in 1873.8 A similar provision is contained in R. S. § 4636.9 Prize causes are appealable direct from the district to the supreme court.10 19 Admiralty Rule XIX. in 2nd circuit. 20 Admiralty Rule XVIII. 2nd circuit. 1Admiralty Rule XVII. 2nd circuit. § 1936. Writ of error in capital cases as of right without se curity. Every such writ of error [i. e. to the Supreme Court on conviction of a capital crime in any court of the United States] shall be allowed as of right and without the requirement of any security for the prosecution of the same or for costs. Part of § 6, act Feb. 6, 1889, c. 113, 25 Stat. 656, U. S. Comp. Stat. 1901, p. 569. Other portions of this provision are contained in other code sections.12 § 1937. Order allowing appeal from Court of Claims. In all cases on order of allowance of appeal by the Court of Claims, or the chief justice thereof in vacation, is essential, and the limitation of time for granting such appeal shall cease to run from the time an application is made for the allowance of appeal. Third supreme court rule in reference to appeals from Court of Claims, promulgated Dec. term, 1865.14 Where the party attempting to appeal signifies his intention within ninety days allowed by the statute for taking appeal,15 the limitation of time ceases to affect the case.16 The allowance of an appeal by the Court of Claims however, does not absolutely and of itself remove the cause from the courts jurisdiction and an order revoking the allowance may be made.17 Where an appeal has been allowed and the record filed in the supreme court the Court of Claims cannot set aside the allowance.18 § 1938. Findings to be filed by Court of Claims. In all cases in which either party is entitled to appeal to the Supreme Court, the Court of Claims shall make and file their finding of facts, and their conclusions of law therein, in open court, before or at the time they enter their judgment in the case. Fourth Supreme Court rule in reference to appeals from the Court of Claims, promulgated Dec. term, 1869.20 § 1939. parties to request findings. In every case, each party at such time before trial and in such form as the court may prescribe, shall submit to it a request to 12 Ante, § 1904, post, § 2122 143 Wall. viii. 15 Ante, § 1897. 16 United States v. Adams, 6 Wall. 108, 18 L. ed. 792. 17Ex parte Roberts, 15 Wall. 384, 27 L. ed. 131. But see United States v. Adams, 6 Wall. 108, 18 L. ed. 792. 18 Kirks Case, 28 Ct. Cl. 276. 209 Wall. VIL. find all the facts which the party considers proven and deems material to the due presentation of the case in the findings of fact. Fifth supreme court rule in reference to appeals from Court of Claims, as amended Jan. 29, 1879.1 The original rule was promulgated Dec. term, 1869.2 If the court of claims refuse to find a material fact the proper remedy is to take an exception which will then be reviewed on appeal.3 And if the finding is material the case will be sent back with directions to find such facts. But failure of the court to find a fact as party alleges it to be, does not justify bringing all evidence on that subject before the Supreme Court.5 The appellate court will not direct the lower court what to find or how to find it. The ultimate finding of the Court of Claims is held to be conclusive.7 § 1940. Statement or findings by Territorial courts. On appeal from the Territories the review is based upon a statement of the facts of the case in the nature of a special verdict, which the court from which the appeal is taken, is required to make, and upon rulings on the admission or rejection of evidence when excepted to and transmitted with the transcript.9 Author's section. This is well settled.10 The matter of findings by Territorial courts is considered elsewhere.9 § 1941. Extensions of time on admiralty appeals in 2nd and 9th circuits. The time specified in the foregoing Rules [i. e. the admiralty rules in the second and ninth circuits11] for any proceeding may be extended by order of a judge of this court. Rule 17 in second circuit and rule 12 in ninth circuit. 5 Mahan v. United States, 14 Wall. (adv. op. p. 79.) 112, 20 L. ed. 764. 11See appendix. CHAPTER 59. PERFECTING APPEAL RECORD AND DOCKETING. § 1950. Return day and service of citation on appeal or error to Supreme Court. § 1951. longer time on appeal from certain Western states, Hawaii, Porto Rico and the Philippines. § 1952. Return day and service on appeal or error to circuit court of appeals. § 1953. What papers must be returned with writ of error. § 1954. § 1955. Record, assignments and all proceedings to be transmitted. § 1956. General rules as to preparation of transcripts in equity, admiralty and at law. § 1957. Transmission and docketing in capital cases. § 1958. Final record in equity and admiralty causes. § 1959. § 1960. What to be transmitted on appeal ir equity and admiralty. § 1961. § 1962. § 1963. § 1964. § 1965. § 1966. What to be transmitted to Supreme Court from Territorial courts. Original papers received in Supreme Court on appeal. § 1972. § 1973. General instructions as to docketing and printing record. Right of opposite party to docket and file record in supreme court. -rule in circuit court of appeals. § 1977. Docketing admiralty cases in second circuit. § 1978. Appearance of counsel entered when transcript filed. Undertaking for clerk's fees upon docketing and filing record. -rule in circuit court of appeals. § 1979. § 1980. § 1981. § 1982. Attachment to compel payment of supreme court clerk's fees. |