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' very probably omit to do so. When once the calendar has been made out, the court will not derange it under any circumstances, by allowing a case to be subsequently put on it in what would otherwise have its proper order, even though the application be not opposed.-Crain v. Rowley, 4 How. 79. The importance of this proceeding being taken in due time, and with an allowance for contingencies, is further demonstrated by the case of Wilkin v. Pearce, 4 How. 26, where the attorney having been taken ill, the last day but one before the day for filing such notice, and having thus been prevented from doing so in time, was not excused; the court holding that he should not have waited till so late before taking that step.
The date of the issue in this court is, as before stated, the date of the filing of the return of the court below.
The number of cases and points required to be in court on the hearing of the appeal, is greater in this tribunal than in those of inferior jurisdiction. The appellant must have with him thirteen copies of the case-one for each of the judges, and five to be delivered to the clerk, to be disposed of by him as prescribed by rule IX. Each party must also be prepared with sixteen copies of his printed points, besides those for his own use: thirteen to be delivered as above, and three others to be served on the counsel for the adverse party, at the commencement of the argument.
In rule X., it is prescribed that the court will not hear an extended discussion upon any mere question of fact.
Under rule XI., the party who has noticed or placed the cause on the calendar for argument, may take judgment of affirmance or reversal, as the case may be, if the other party shall neglect to appear and argue the cause, or to furnish and deliver cases or points, as required by rules IX. and X. Notice of the order so obtained must be served at once.--See rule XVII., after cited.
In the event of a default of this description being taken, it is always competent to the other party to apply for an order opening it, on the usual notice of motion, for which purpose a delay of ten days is prescribed by rule XVII.; and, if he apprehend proceedings in the interim, he may further apply ex parte for a stay of proceedings under rule XVIII., which will doubtless be granted, and may be served with the notice. The application must, of course, be grounded on an affidavit of the circumstances, showing that the default has arisen from surprise or excuseable neglect, under which circumstances the relief may probably be granted, though the payment of costs will most likely be imposed, as usual in similar cases.
Only one counsel will, as a general rule, be heard on each side, in the argument of calendar causes or motions, unless the court shall otherwise direct.-Rule XII. Criminal cases have a preference.--Rule XIII. And also certain proceedings by the attorney general, as noticed in a previous chapter If the parties prefer it, causes may be submitted by them on printed arguments.-Rule XIV. It is not an unusual practice for the counsel on both sides to do so, upon the cases and points as prepared ; and, in causes of minor importance, this course is calculated to save much time and consequent expense.
On the appeal being disposed of, either by default or on a regular hearing, the decision of the appellate tribunal is certified to that below, in order that the necessary action may be taken thereon. This proceeding is effected by means of a remittitur, the form of which document is prescribed by rule XVI., as follows :
Rule XVI.—The remittitur shall contain a copy of the judgment of this court, and the return made by the clerk of the court below; and shall be sealed with the seal, and signed by the clerk of this court.
In cases where default has been taken, it is not competent for the moving party to perfect the remittitur, until a sufficient time has been given to his adversary for the purpose of an application to open such default, as above noticed. Rule XVII. provides upon the subject, as follows:
Rule XVII.—When a decree or order shall be affirmed or reversed by the default of either party, the remittitur shall not be sent to the court below, unless this court shall otherwise direct, until ten days after notice of the affirmance or reversal shall have been served on the attorney of the party in default. Service of the notice shall be proved to the clerk by affidavit, or by the written admission of the attorney on whom it was served.
Where an appeal has been taken from a judgment, and also from an order, and has been dismissed as far as regards the latter, no remittitur can properly be made until the appeal from the judgment is also disposed of.-McFarlan v. Watson, 4 How. 128, 184. On this point, this case seems of authority, though overruled on others.
· As long as the remittitur has not been actually sent to and filed in the court below, the court of appeals possesses jurisdiction of the cause, for the purpose of correcting any errors in the judgment.—Burckle v. Luce, 3 How. 236.
But so soon as the remittitur has been filed below, that jurisdiction is gone.-Martin v. Wilson, 1 Comst. 240 ; Frazer v. Western, 3 How. 235; Dresser v. Brooks, 4 How. 207, 2 Comst. 559. The only remedy in such cases is a new appeal, and such new appeal cannot be taken until the costs of the former one have been paid.-Dresser v. Brooks, 5 How. 75.
The power of the court of appeals to remit to the court below, on any order, which disposes of the appeal in any manner, as by dismissal for any defect or otherwise, is fully established by the above cases of Dresser v. Brooks, 4 How. 207 ; 2 Comst. 559; Langley v. Warner, 2 C. R. 97; and Doty v. Brown, 4 How. 429, overruling pro tant; McFarlan v. Watson, 4 How. 128, above cited. See also reference to two cases on the same subject, 4 How: 184.
After the remittitur has once been filed in the court below, that court cannot entertain a motion to restore it to the appellate court, in order that alleged errors may be reconsidered. The desire even of the appellate tribunal to re-examine its decision, cannot be brought before the lower tribunal, upon affidavit. It can only be recognized on some act of the appellate court, as such, as on a resolution certified to by the clerk, and duly communicated to the court below, or its officers. Such a direction would, doubtless, be obeyed.-Selden v. Vermilya, 9 L. 0.83; 3 Sandf, 683; 6 How. 41.
In Newton v. Harris, 8 Barb. S. C. R. 306, 1 C. R. (N. S.) 191, the appeal having been dismissed for want of prosecution, a motion was made to set aside the judgment entered upon the remittitur, on the ground that the order of dismissal had been irregularly obtained. It was held that the court below had no jurisdiction to interfere, but were bound by the remittitur, whether irregular or not, unless absolutely void, and that the defendant should apply to the court of appeals to vacate their order, by which the appeal would be restored. There would then be no foundation for the judgment entered on the remittitur, and the court would set it aside, if necessary, on motion.
It would, doubtless, be held that an appellant cannot dismiss his own appeal without payment of the respondent's costs, in
accordance with the principle laid down by the supreme court in Burnett v. Harkness, 4 How. 158. He cannot bring a new appeal after the dismissal of one previously dismissed, until the costs of the latter have been first paid.—Dresser v. Brooks, 5 How. 75, above cited.
The remittitur must be taken out, and the clerk's fees thereon paid by the prevailing party. It must be lodged by him with the clerk of the court below, and a copy made and served by him on the adverse attorney. On such lodgment and service, the cause in the court below is restored to precisely the same condition in which it would have been had its judgment been in accordance with that of the appellate tribunal, on the one hand, or if no appeal had been taken, on the other. If the judgment be affirmed, execution issues as of course, for the original debt and costs, including the costs of the appeal, which must be taxed in the usual manner, and judgment entered accordingly on the remittitur. If the judgment be reversed, the prevailing party is entitled to enter judgment in the usual manner, in his favor, and to enter satisfaction on that of his adversary. Should a new trial be ordered, the cause is again set down and brought on in due course, as of the date of the original issue. Should the remittitur be in respect of an order, that order is either affirmed or vacated thereon; or, should any further action on the part of the court below be required, it may be applied for ex parte, and as of course. In short, the effect of a remittitur is, as before stated, to restore the case to the exact position in which it would have stood, if a correct decision had been made by the court below in the first instance, on the one hand: or, on the other, if the decision so made had not been sought to be reviewed on appeal.
In no respect has the Code effected a more radical and complete change, than as regards the costs of actions or suits in the different courts, whether as to the relations of the parties in a proceeding to each other, or with reference to those between such parties, and their attorneys or counsel. The former provisions on both subjects are completely swept away, and an entire new system substituted.
It is hardly possible, indeed, to imagine a more complete contrast, than that which exists between the former and the present provisions on the subject. Whether too much may not have been attempted on the one hand, and too little preserved on the other, is a matter by no means free from doubt; and, possibly, some may even be entertained as to whether the provisions of the Code itself do not even tend, in many respects, to counteract the expressed intentions of its framers. Those intentions are thus stated by the parties in question, upon their report :
“ The losing party ought, as a general rule, to pay the expense of the litigation. He has caused a loss to his adversary unjustly, and should indemnify him for it. The debtor who refuses to pay, ought to make his creditor whole.”
The extent to which the object thus proposed is actually carried out, will best be seen hereafter. The practical effect of the provisions made for this purpose, seems rather to be the rendering a complete and accurate indemnification a matter of impossibility in practice; and this, even with the precarious assistance, which an application for an allowance under sec. 308 may perhaps afford in some cases. The prevailing party is, as a general rule, saddled with the payment of his counsel fees, without the possibility of obtaining reimbursement from his opponent, however unavoidably he may himself have been