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or other papers constituting the record in ranged on the calendar as the chief justice original proceedings upon which the case is of the court may direct. heard in this court, required by these rules to be printed, shall be allowed as costs, and

Rule XVIII. taxed in bills of costs in the usual mode.

Rule XIV.

In all cases where a paper or document is

required by these rules to be printed, it shall SUGGESTION OF DIMINUTION OF

be printed upon similar paper and in the RECORD.

same style and form (except the numbering For the purpose of correcting any error or of the folios in the margin) as is prescribed defect in the transcript, either party may for the printing of transcripts. suggest the same in writing, and, upon good cause shown, obtain an order that the proper

Rule XIX. clerk certify to this court the whole or part of the record, as may be required, or may

ORAL ARGUMENT. produce the same duly certified without such

No more than one counsel on a side will order. If the attorney or counsel of the be heard upon the argument, except in peadverse party be absent, or the fact of the culiar and important cases; but each defendalleged error or defect be disputed, the sug- ant who has appeared separately in the court gestion, except when a certified copy of the below may be heard through his own counomitted record is produced at the time, must sel. The counsel of each party to a case apbe accompanied by an affidavit showing the pealed shall be allowed only one hour, unexistence of the error or defect alleged.

less an extension of time be obtained from

the court before the argument is commenced, Rule XV.

and in an original proceeding such time as

shall be fixed by the court before the com EXCEPTIONS TO TRANSCRIPT. mencement of the argument. Exceptions or objections to the transcript, statement, the bond or undertaking on ap

Rule XX. peal, the notice of appeal, or to its service,

MOTIONS AND APPLICATIONS-TIME or any technical exception or objection to the record in civil cases, affecting the right

FOR SERVICE OF NOTICE. of the appellant to be heard on the points

1. In all cases where notice of a motion of error assigned, which might be cured on is necessary, unless for good cause shown suggestion of diminution of the record, must the time is shortened by the court, the nobe taken and notified to the appellant, in tice shall be ten days. writing, at least five days before the hearing, or they will not be regarded; and when

HEARING OF MOTIONS AND OTHER so noted, it shall be the duty of the appel

APPLICATIONS. lant to present and file at the hearing of the cause such additional record, certificate, or 2. For the purpose of hearing motions and other matter, if such there be, to remove or other applications of which notice is reanswer the objection or exception so taken; quired to be given, each department will otherwise such objection or exception, if be in session on the first Monday in each well taken, shall prevail.

month, at 10 o'clock a. m.

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TITUR. Upon the death or other disability of a party, pending an appeal, his representative When a judgment is reversed, or modified, shall be substituted in the suit by sugges- a certified copy of the opinion in the case tion, in writing, on the part of such repre- shall be transmitted, with the remittitur, to sentative, or of any party on the record. the court below. Upon the entry of such suggestion, an order of substitution will be made, and the cause

Rule XXII. sball proceed as in other cases.


No paper shall be taken from the court Rule XVII,

room or clerk's oflice, except by order of the CALENDAR

court. No order will be made for leave to.

withdraw a transcript for examination, exCriminal causes shall be placed at the head cept upon leaving with the clerk a written of the calendar. Other causes shall be ar- receipt therefor.


support the application, also set forth the

circumstances which, in the opinion of the COSTS.

applicant, render it proper that the writ When causes are placed upon the calen- should issue originally from this court and dar, parties shall be primarily liable for not from such other court. The sufficiency costs as follows:

or insufficiency of such circumstances so set First-If by the appellant, he shall first be forth in that behalf will be determined by liable.

the court in awarding or refusing the appliSecond-If by the respondent, or by con- cation. In case any court, judge, or other sent, then both parties.

officer, or any board or other tribunal in the In civil cases the clerk shall not be re- discharge of duties of a public character, be quired to remit the final papers until the named in the application as respondent, the costs are paid. In all cases in which the affidavit or petition shall also disclose the judgment or order appealed from is reversed name or names of the real party or parties, or modified, and the order of reversal or if any, in interest, or whose interest would be modification contains no directions as to directly affected by the proceedings, and in costs of appeal, the clerk will enter upon such case it shall be the duty of the applithe record, and insert in the remittitur a cant obtaining an order for any such writ judgment that the appellant recover the to serve or cause to be served upon such costs of appeal.

party or parties in interest a true copy of the affidavit or petition, and of the writ

issued thereon, in like manner as the same Rule XXIV.

is required to be served upon the respondDISMISSAL OF APPEAL ON STIPULA- ent named in the application in the proTION.

ceedings, and to produce and file in the

office of the clerk of this court the like evi. An appeal or writ of error may be dis- dence of such service. missed at any time, upon and in accordance with the written stipulation of the at MEMORANDUM OF AUTHORITIES. torneys of record of the respective parties;

2. All ex parte applications to the court and upon and in accordance with such stipu- for the issuance of writs in the exercise of lation, the clerk shall enter such dismissal, its original jurisdiction shall be in writing and the remittitur shall issue thereon in ac- and filed with the clerk, and the same shall cordance with the terms of such stipulation. be accompanied by a memorandum of points

and authorities upon which the application Rule XXV.


RETURN AND ISSUANCE OF WRIT. When the insi ction of an original paper, 3. Upon the return day of the alternative which was offered in evidence in the court writ the respondent may make return, either below, is shown to be necessary to a correct by demurrer or by answer, or by both. If decision of the appeal, the court may order the return be by demurrer alone, and the the clerk of the court below to transmit such demurrer is not sustained, the writ will be original paper, if in his possession, to the ordered to issue without further leave to clerk of this court; and if such paper be in answer. the possession of a party to the action, he

STAY OF PROCEEDINGS. may produce the same on the hearing of the cause, or he may, upon motion and notice 4. When an application is made to this of the adverse party, be required to produce court for an alternative writ, an order stay. such paper on the hearing of the cause; and ing the proceedings of any court or officer, in default thereof, the court will intend the until the return of the writ, will not be paper to be, in all respects, as alleged by the made unless due notice of the application opposite party.

for the writ shall have been given to all the

parties interested in the proceedings. Rule XXVI. REASONS FOR ORIGINAL APPLICATION

Rule XXVII. TO THIS COURT TO BE STATED. SETTLEMENT OF BILLS OF EXCEPTION 1. If any application made to the court

ON DEATH OF JUDGE. for a writ of mandamus, certiorari, prohibi When the judge before whom an action tion, procedendo, or for any prerogative was tried is dead, or is removed from office, writ to be issued in the exercise of its origi- any unsettled bill of exceptions, or statenal jurisdiction, and for which an applica- ment on motion for new trial therein, may tion might have been lawfully made to some be settled and certified by his successor in other court in the first instance, the affida- office; or, if he be disqualified, by the judge vit or petition shall, in addition to the neces of the same or an adjoining county. And sary matter requisite by the rules of law to when the judge before whom an action was

tried becomes disqualified, is absent from ment in accordance therewith, shall be signthe state, or refuses to settle the bill of ex- ed by the members of the court assenting ceptions or statement on motion for a new thereto. trial, such bill of exceptions or statement may be settled and certified before a judge

OPINIONS WITHIN NINETY DAYS of the same or an adjoining county.

AFTER SUBMISSION. 3. Every opinion which shall have received

the assent of a sufficient number of the Rule XXVIII.

members of the court to order the judgAPPLICATION TO HEAR CAUSE IN ment therein directed shall be filed within BANK.

ninety days after the submission of the 1. Applications, made before or after judg

cause in which such opinion is written. ment pronounced by a department, that a

FILING OF OPINIONS. cause shall be heard and decided by the court in bank, must be made upon printed clerk in the district where the court may

4. Opinions will be filed in the office of the petition, addressed to the chief justice or the be in session at the time, but the opinion, if court, setting forth the question involved in the cause and the reasons why it should be in a case submitted in another district, shall, heard by the court in bank. If made before after filing, be immediately transmitted by judgment, the petition must be filed with the clerk to the clerk's office of such dis

trict. the clerk of the court at least ten days before the clerk makes up the calendar; and Ordered that the foregoing rules be, and if made after judgment is pronounced by the same are hereby, adopted; that they be either of the departments, within twenty published in accordance with the provisions days after such judgment. The times here of the statute in that behalf, and the clerk in prescribed shall not be extended by the is directed to cause the said publication to chief justice or any of the associate justices be made by one insertion in one of the daily or the court; and the clerk shall not file a newspapers published in San Francisco, Los petition after such times have expired. In Angeles, and Sacramento; and that they case of judgments, the petition shall operate take effect July 1, 1892, and that thereupon. as a stay of proceedings until it shall be de- the rules heretofore made be abrogated. termined.



PATERSON, J. 2. A cause submitted to a department with

SHARPSTEIN, J.. out oral argument shall be deemed to be a

DE HAVEN, J. waiver of an oral argument of the same in

GAROUTTE, J. bank, if for any reason the same is there.

April 13, 1892. after ordered to be heard in bank; and when the order that the cause be heard in bank

Rule XXXI. is made, the same shall be at once submitted In all criminal cases, and in all other cases: for decision, unless otherwise ordered by the where the state or any officer thereof in his court.

official capacity is a party, and in all cases Rule XXIX.

to which any county may be a party, unless

the interest of the county is averse to the AUTHENTICATION OF PAPERS. state or to some officer thereof acting in his In all cases of appeal to this court from official capacity, no transcript on appeal or the orders of the superior courts, the papers brief on behalf of the state or of such counand evidence used or taken on the hearing ty or officer whom the attorney general is of the motion must be authenticated by in- empowered to represent, shall be received corporating the same in a bill of exceptions, or filed by the clerk of this court without except where another mode of authentica- proof of the service of such transcript or tion is provided by law.

brief upon the attorney general. On such transcript or brief there shall not be printed

the name of any person as attorney for the Rule XXX.

state or for such county or officer of the REHEARINGS AND OPINIONS.

state, other than the name of the attorney

general, without the order of this court or 1. All orders granting rehearings, or for the written consent of the attorney general. hearing in bank causes decided in depart- first obtained. ments, shall be signed by the members of

Dated September 4, 1896. the court assenting thereto, and filed with

BEATTY, C. J. the clerk.



VAN FLEET, J. 2. The order of the court approving an

McFARLAND, J.. opinion of the commission, and for judg



Adopted April Term, 1901.

Writs of Error-Supersedeas-Process on clerk of the court below, with assignments of Writs of Error.

error appended thereto, which assignments

must be supported by a succinct printed or Rule 1. Writs of error shall be directed to typewritten brief. No application for a suthe clerk or keeper of the records of the court in which the judgment or decree com sidered by the court, or by any judge in

persedeas or other original writ will be conplained of is entered, commanding him to certify a correct transcript of the record to vacation, unless the cause shall have been

first docketed. this court. In any case where a transcript

Upon the docketing of the cause, as aforeof the record, duly ertified to be full and complete, has been filed, or may be hereafter said, the sum of fifteen dollars shall be paid filed, in the office of the clerk of this court, to the clerk, and upon the allowance of the before the issuance of a writ of error, it shall writ, or upon further prosecution of the

cause, an additional sum of ten dollars shall not be necessary, except in a case where a

be advanced to the clerk. supersedeas may be allowed, to deliver such

Rule 5. When a writ of error shall be made writ to the clerk of the inferior court; but

a supersedeas, the clerk shall indorse upon the same may be filed in the office of the said writ the following words: “A tranclerk of this court, and such transcript, so script of the record in this case having been filed with the clerk of this court, shall be fled in my office, with an order indorsed taken and considered to be a due return to thereon that the writ of error herein be made said writ of error. When a writ of error shall issue in a case where a supersedeas error is therefore made a supersedeas, and

a supersedeas, according to law, this writ of has been allowed after the filing of the tran

shall operate accordingly,"—which indorsescript of the record, and shall be served on

ment shall be signed by the clerk of this the clerk of the inferior court, he shall re

court. turn upon said writ that the same has been

Rule 6. Whenever execution or other final served upon him, and that it appears by the indorsement thereon that a transcript of the process shall be issued upon a judgment at

law or decree in equity, and the record of record has been filed in the office of the clerk such judgment or decree shall be removed of the court of appeals.

into this court by writ of error operating as Rule 2. A scire facias, or summons to hear

a supersedeas, such writ of error may be errors, if issued ten days or more before the served upon the officer in whose hands such first day of the term, shall be returnable to execution may be, and thereupon all proceedthe first day of the term.

ings under such execution shall be disconIf issued less than ten days before the first tinued, and such officer shall return the same day of the term, it may be made returnable into the court from which it was issued, toto any day in the term: provided, that in all gether with the copy of the writ of error cases, if such writ shall not be served ten served on him, and shall set forth in his days before the return day thereof, the de- return to such execution what, if anything, fendant so served shall not be required to he hath done in obedience to the command appear in obedience thereto until the first

thereof. day of the term succeeding such return day.

Such service of the writ of error and superA defendant upon whom process has not sedeas may be made by delivering to the offibeen served may enter bis appearance, and

cer having such final process for execution upon fire days' notice to the plaintiff, may a copy of such writ of error and the indorseproceed in the same manner as if duly served ments thereon, with the certificate of the with process.

clerk of the court of appeals, or of the clerk Rule 3. If a scire facias, or summons to of the inferior court to whom the same is hear errors, shall not be served, an alias or directed, that the same is a true and perfect pluries may be issued without an order of

copy of the original of such writ of error and court therefor.

the indorsements thereon. Rule 4. No supersedeas will be granted unless the record upon which the application is

Rule 7. Whenever a bond is executed by an made be complete and duly certified by the attorney in fact, the original power of attor

ney shall be filed with the bond in the office 1 For rules as originally adopted, see 33 Pac. v. of the clerk of this court, unless it shall ap

pear that the power of attorney contains The same shall be signed by an attorney or other powers than the mere power to exe counselor of the court. cute the bond in question; in which case, the Rule 12. If the appellant or plaintiff in eroriginal power of attorney shall be presented ror shall fail to assign error, the appeal or to the clerk, and a true copy thereof filed, writ of error may be dismissed. certified by the clerk to be a true copy of No formal joinder in error shall be rethe original.

quired, but if the appellee or defendant in

error shall not in any manner appear within Transcript of the Record.

the time allowed for filing briefs in his beRule 8. Clerks of inferior courts in making half, the cause may be heard ex parte, or up an authenticated copy of the record in the judgment or decree of the court below civil cases shall certify to this court so much may, in the discretion of the court, be re

versed without a hearing. of the record, arranged in chronological order, as the appellant or plaintiff in error may, cussion of the errors stated, but the court

Rule 13. Counsel will be confined to a disby præcipe, indicate.

If the record, so certified, shall be insuffi- may, in its discretion, notice any other error cient, it shall be perfected at his cost; and it appearing of record. unnecessarily voluminous, the cost of the un

Abstract of Record. necessary parts shall be taxed against him.

Rule 14. Appellants and plaintiffs in error Supplemental Transcript of Record.

in all cases shall, within twenty days after Rule 9. When a party to any cause pend- clerk eight copies of a printed abstract of the

the returz day, prepare and file with the ing in this court asks leave, without suggesting a diminution of record, to file an addi- record, in which they shall set forth the title tional or supplemental transcript of the rec

of the cause, with the date of the filing of ord, he shall give at least twenty-four hours' all papers in the court below, and a brief notice thereof to the opposite party. At the statement of the contents of each pleading,

and shall set forth fully the points of the time of giving such notice the additional or supplemental transcript shall be deposited pleadings and evidence, and the points relied with the clerk of this court for the inspec- upon for the reversal of the judgment or tion of the opposite party. Such motion shall decree. They shall also refer to the folio be submitted under rule 23, and if leave is tions, on the margin of the abstract, in such

numbers in the transcript and bill of excepgranted, the additional or supplemental transcript may be filed and considered in connec- therein referred to may be easily found in

manner that orders, pleadings and evidence tion with the original transcript.

the record.

If the abstract filed shall not present the Dismissal of Appeals.

parts of the record to which reference is Rule 10. If a transcript of the record shall made in the assignment of errors, the appeal not be filed, as required by law in case of or writ of error may be dismissed. appeal, the appellee may present a transcript Rule 15. Counsel for the appellee or defendof the judgment, the order allowing the ap- ant in error may, if he is not satisfied with peal, the bond and the approval thereof, and the abstract of the record filed in the case, thereupon the appeal shall be dismissed, with within twenty days after the same is filed, costs.

file with the clerk eight copies of such furWhenever an appeal or writ of error shall ther abstract as he shall deem necessary to be dismissed, this court may, in its discre- a full understanding of the merits of the tion, affirm the judgment of the court below. cause.

Rule 16. In case the appellant or plaintiff Assignment of Errors.

in error shall neglect to file an abstract and

brief as required, the opposite party may file Rule 11. Appellants and plaintiffs in error the same and prepare the cause for hearing shall assign errors in writing at the time of ex parte, and have the costs taxed therefor, filing the transcript of the record, and each or the court may dismiss the appeal or writ error shall be separately alleged and particu- of error without notice. larly specified. When the error alleged is to the charge of

Briefs of Counsel, etc. the court, the part of the charge referred to shall be quoted totidem verbis in the specifi Rule 17. All briefs of counsel and abstracts cations: provided, where the charge is di- of the record shall be printed upon octavo vided into separate paragraphs or instruc-pages, in pamphlet form, in small pica type, tions, which are each duly numbered, ant leaded. Extracts and quotations must be in error is assigned as to one or more entire the same type, either solid or indented, in paragraphs or instructions, it shall be suffi- the discretion of counsel. cient to designate the part of the charge re The brief of counsel for appellant or plainferred to by giving the number prefixed to tiff in error shall contain a statement of the each paragraph or instruction so assigned for errors relied upon, and the authorities to be

used in the argument, and eight copies there


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