or other papers constituting the record in original proceedings upon which the case is heard in this court, required by these rules to be printed, shall be allowed as costs, and taxed in bills of costs in the usual mode.

Rule XIV.

SUGGESTION OF DIMINUTION OF
RECORD.

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, or may produce the same duly certified without such order. If the attorney or counsel of the adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion, except when a certified copy of the omitted record is produced at the time, must be accompanied by an affidavit showing the existence of the error or defect alleged.

Rule XV.

EXCEPTIONS TO TRANSCRIPT. Exceptions or objections to the transcript, statement, the bond or undertaking on appeal, the notice of appeal, or to its service, or any technical exception or objection to the record in civil cases, affecting the right of the appellant to be heard on the points of error assigned, which might be cured on suggestion of diminution of the record, must be taken and notified to the appellant, in writing, at least five days before the hearing, or they will not be regarded; and when so noted, it shall be the duty of the appellant to present and file at the hearing of the cause such additional record, certificate, or other matter, if such there be, to remove or answer the objection or exception so taken; otherwise such objection or exception, if well taken, shall prevail.

Rule XVI.

SUGGESTION OF DEATH OF PARTY. Upon the death or other disability of a party, pending an appeal, his representative shall be substituted in the suit by suggestion, in writing, on the part of such representative, or of any party on the record. Upon the entry of such suggestion, an order of substitution will be made, and the cause shall proceed as in other cases.

Rule XVII.

CALENDAR.

Criminal causes shall be placed at the head of the calendar. Other causes shall be ar

ranged on the calendar as the chief justice of the court may direct.

Rule XVIII.

PRINTING OF POINTS, ETC.

In all cases where a paper or document is required by these rules to be printed, it shall be printed upon similar paper and in the same style and form (except the numbering of the folios in the margin) as is prescribed for the printing of transcripts.

Rule XIX.

ORAL ARGUMENT.

No more than one counsel on a side will

be heard upon the argument, except in peculiar and important cases; but each defendant who has appeared separately in the court below may be heard through his own counsel. The counsel of each party to a case appealed shall be allowed only one hour, un

less an extension of time be obtained from the court before the argument is commenced, and in an original proceeding such time as shall be fixed by the court before the com mencement of the argument.

Rule XX.

MOTIONS AND APPLICATIONS-TIME FOR SERVICE OF NOTICE.

1. In all cases where notice of a motion

is necessary, unless for good cause shown the time is shortened by the court, the notice shall be ten days.

HEARING OF MOTIONS AND OTHER

APPLICATIONS.

2. For the purpose of hearing motions and other applications of which notice is required to be given, each department will be in session on the first Monday in each month, at 10 o'clock a. m.

Rule XXI.

OPINION TRANSMITTED WITH REMIT-TITUR.

When a judgment is reversed, or modified, a certified copy of the opinion in the case shall be transmitted, with the remittitur, to the court below.

Rule XXII.

WITHDRAWAL OF TRANSCRIPT, ETC. No paper shall be taken from the court room or clerk's office, except by order of the court. No order will be made for leave to. withdraw a transcript for examination, except upon leaving with the clerk a written receipt therefor.

Rule XXIII.

COSTS.

When causes are placed upon the calendar, parties shall be primarily liable for costs as follows:

First-If by the appellant, he shall first be liable.

Second-If by the respondent, or by consent, then both parties.

In civil cases the clerk shall not be required to remit the final papers until the costs are paid. In all cases in which the judgment or order appealed from is reversed or modified, and the order of reversal or modification contains no directions as to costs of appeal, the clerk will enter upon the record, and insert in the remittitur a judgment that the appellant recover the costs of appeal.

Rule XXIV.

support the application, also set forth the circumstances which, in the opinion of the applicant, render it proper that the writ should issue originally from this court and not from such other court. The sufficiency or insufficiency of such circumstances so set forth in that behalf will be determined by the court in awarding or refusing the application. In case any court, judge, or other officer, or any board or other tribunal in the discharge of duties of a public character, be named in the application as respondent, the affidavit or petition shall also disclose the name or names of the real party or parties, if any, in interest, or whose interest would be directly affected by the proceedings, and in such case it shall be the duty of the applicant obtaining an order for any such writ to serve or cause to be served upon such 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 is required to be served upon the respond

TION.

An appeal or writ of error may be dismissed at any time, upon and in accordance with the written stipulation of the attorneys of record of the respective parties; and upon and in accordance with such stipulation, the clerk shall enter such dismissal, and the remittitur shall issue thereon in accordance with the terms of such stipulation.

Rule XXV.

INSPECTION OF ORIGINAL PAPERS. When the inspection of an original paper, which was offered in evidence in the court below, is shown to be necessary to a correct decision of the appeal, the court may order the clerk of the court below to transmit such original paper, if in his possession, to the clerk of this court; and if such paper be in the possession of a party to the action, he may produce the same on the hearing of the cause, or he may, upon motion and notice of the adverse party, be required to produce such paper on the hearing of the cause; and in default thereof, the court will intend the paper to be, in all respects, as alleged by the opposite party.

Rule XXVI.

REASONS FOR ORIGINAL APPLICATION TO THIS COURT TO BE STATED. 1. If any application made to the court for a writ of mandamus, certiorari, prohibition, procedendo, or for any prerogative writ to be issued in the exercise of its original jurisdiction, and for which an application might have been lawfully made to some other court in the first instance, the affidavit or petition shall, in addition to the necessary matter requisite by the rules of law to

ceedings, and to produce and file in the office of the clerk of this court the like evidence of such service.

MEMORANDUM OF AUTHORITIES.

2. All ex parte applications to the court for the issuance of writs in the exercise of its original jurisdiction shall be in writing and filed with the clerk, and the same shall be accompanied by a memorandum of points and authorities upon which the application is made.

RETURN AND ISSUANCE OF WRIT.

3. Upon the return day of the alternative writ the respondent may make return, either by demurrer or by answer, or by both. If the return be by demurrer alone, and the demurrer is not sustained, the writ will be ordered to issue without further leave to answer.

STAY OF PROCEEDINGS.

4. When an application is made to this court for an alternative writ, an order staying the proceedings of any court or officer, until the return of the writ, will not be made unless due notice of the application for the writ shall have been given to all the parties interested in the proceedings.

Rule XXVII.

SETTLEMENT OF BILLS OF EXCEPTION ON DEATH OF JUDGE.

When the judge before whom an action was tried is dead, or is removed from office, any unsettled bill of exceptions, or statement on motion for new trial therein, may be settled and certified by his successor in office; or, if he be disqualified, by the judge of the same or an adjoining county. And when the judge before whom an action was

tried becomes disqualified, is absent from the state, or refuses to settle the bill of exceptions or statement on motion for a new trial, such bill of exceptions or statement may be settled and certified before a judge of the same or an adjoining county.

Rule XXVIII.

APPLICATION TO HEAR CAUSE IN BANK.

1. Applications, made before or after judgment pronounced by a department, that a cause shall be heard and decided by the court in bank, must be made upon printed petition, addressed to the chief justice or the court, setting forth the question involved in the cause and the reasons why it should be heard by the court in bank. If made before judgment, the petition must be filed with the clerk of the court at least ten days before the clerk makes up the calendar; and if made after judgment is pronounced by either of the departments, within twenty days after such judgment. The times herein prescribed shall not be extended by the chief justice or any of the associate justices or the court; and the clerk shall not file a petition after such times have expired. In case of judgments, the petition shall operate as a stay of proceedings until it shall be de

termined.

WAIVER OF ARGUMENT.

2. A cause submitted to a department without oral argument shall be deemed to be a waiver of an oral argument of the same in bank, if for any reason the same is thereafter ordered to be heard in bank; and when the order that the cause be heard in bank is made, the same shall be at once submitted for decision, unless otherwise ordered by the court.

Rule XXIX.

AUTHENTICATION OF PAPERS. In all cases of appeal to this court from the orders of the superior courts, the papers and evidence used or taken on the hearing of the motion must be authenticated by incorporating the same in a bill of exceptions, except where another mode of authentication is provided by law.

Rule XXX.

REHEARINGS AND OPINIONS.

1. All orders granting rehearings, or for hearing in bank causes decided in departments, shall be signed by the members of the court assenting thereto, and filed with the clerk.

APPROVAL OF COMMISSION OPINIONS.

2. The order of the court approving an opinion of the commission, and for judg

ment in accordance therewith, shall be signed by the members of the court assenting thereto.

OPINIONS WITHIN NINETY DAYS
AFTER SUBMISSION.

3. Every opinion which shall have received the assent of a sufficient number of the members of the court to order the judgment therein directed shall be filed within ninety days after the submission of the cause in which such opinion is written.

FILING OF OPINIONS.

clerk in the district where the court may 4. Opinions will be filed in the office of the be in session at the time, but the opinion, if in a case submitted in another district, shall, the clerk to the clerk's office of such disafter filing, be immediately transmitted by

trict.

In all criminal cases, and in all other cases where the state or any officer thereof in his official capacity is a party, and in all cases to which any county may be a party, unless the interest of the county is averse to the state or to some officer thereof acting in his official capacity, no transcript on appeal or brief on behalf of the state or of such county or officer whom the attorney general is empowered to represent, shall be received or filed by the clerk of this court without proof of the service of such transcript or brief upon the attorney general. On such transcript or brief there shall not be printed the name of any person as attorney for the state or for such county or officer of the state, other than the name of the attorney general, without the order of this court or the written consent of the attorney general. first obtained.

Dated September 4, 1896.

BEATTY, C. J.
GAROUTTE, J.
HENSHAW, J.

VAN FLEET, J.
MCFARLAND, J..

TEMPLE, J.

Writs of Error.

Rule 1. Writs of error shall be directed to the clerk or keeper of the records of the court in which the judgment or decree complained of is entered, commanding him to certify a correct transcript of the record to this court. In any case where a transcript of the record, duly certified to be full and complete, has been filed, or may be hereafter filed, in the office of the clerk of this court, before the issuance of a writ of error, it shall not be necessary, except in a case where a supersedeas may be allowed, to deliver such writ to the clerk of the inferior court; but the same may be filed in the office of the clerk of this court, and such transcript, so filed with the clerk of this court, shall be taken and considered to be a due return to said writ of error. When a writ of error

shall issue in a case where a supersedeas has been allowed after the filing of the transcript of the record, and shall be served on the clerk of the inferior court, he shall return upon said writ that the same has been served upon him, and that it appears by the indorsement thereon that a transcript of the record has been filed in the office of the clerk

of the court of appeals.

Rule 2. A scire facias, or summons to hear errors, if issued ten days or more before the first day of the term, shall be returnable to the first day of the term.

If issued less than ten days before the first day of the term, it may be made returnable to any day in the term: provided, that in all

cases, if such writ shall not be served ten

days before the return day thereof, the defendant so served shall not be required to appear in obedience thereto until the first day of the term succeeding such return day. A defendant upon whom process has not been served may enter his appearance, and upon five days' notice to the plaintiff, may proceed in the same manner as if duly served

with process.

Rule 3. If a scire facias, or summons to hear errors, shall not be served, an alias or pluries may be issued without an order of court therefor.

Rule 4. No supersedeas will be granted unless the record upon which the application is made be complete and duly certified by the

1 For rules as originally adopted, see 33 Pac. v.

error appended thereto, which assignments must be supported by a succinct printed or typewritten brief. No application for a susidered by the court, or by any judge in persedeas or other original writ will be convacation, unless the cause shall have been

first docketed.

said, the sum of fifteen dollars shall be paid Upon the docketing of the cause, as aforeto the clerk, and upon the allowance of the writ, or upon further prosecution of the

cause, an additional sum of ten dollars shall be advanced to the clerk.

Rule 5. When a writ of error shall be made a supersedeas, the clerk shall indorse upon said writ the following words: "A transcript of the record in this case having been filed in my office, with an order indorsed thereon that the writ of error herein be made a supersedeas, according to law, this writ of error is therefore made a supersedeas, and shall operate accordingly,"-which indorsement shall be signed by the clerk of this court.

Rule 6. Whenever execution or other final

process shall be issued upon a judgment at law or decree in equity, and the record of such judgment or decree shall be removed into this court by writ of error operating as a supersedeas, such writ of error may be served upon the officer in whose hands such execution may be, and thereupon all proceedings under such execution shall be discontinued, and such officer shall return the same into the court from which it was issued, together with the copy of the writ of error served on him, and shall set forth in his return to such execution what, if anything, he hath done in obedience to the command

thereof.

Such service of the writ of error and supersedeas may be made by delivering to the officer having such final process for execution a copy of such writ of error and the indorsements thereon, with the certificate of the clerk of the court of appeals, or of the clerk of the inferior court to whom the same is directed, that the same is a true and perfect copy of the original of such writ of error and the indorsements thereon.

Rule 7. Whenever a bond is executed by an attorney in fact, the original power of attorney shall be filed with the bond in the office of the clerk of this court, unless it shall ap

pear that the power of attorney contains other powers than the mere power to execute the bond in question; in which case, the original power of attorney shall be presented to the clerk, and a true copy thereof filed, certified by the clerk to be a true copy of the original.

Transcript of the Record.

Rule 8. Clerks of inferior courts in making up an authenticated copy of the record in civil cases shall certify to this court so much of the record, arranged in chronological order, as the appellant or plaintiff in error may, by præcipe, indicate.

If the record, so certified, shall be insufficient, it shall be perfected at his cost; and if unnecessarily voluminous, the cost of the unnecessary parts shall be taxed against him.

Supplemental Transcript of Record. Rule 9. When a party to any cause pending in this court asks leave, without suggesting a diminution of record, to file an additional or supplemental transcript of the record, he shall give at least twenty-four hours' notice thereof to the opposite party. At the time of giving such notice the additional or supplemental transcript shall be deposited with the clerk of this court for the inspection of the opposite party. Such motion shall be submitted under rule 23, and if leave is granted, the additional or supplemental transcript may be filed and considered in connection with the original transcript.

Dismissal of Appeals.

Rule 10. If a transcript of the record shall not be filed, as required by law in case of appeal, the appellee may present a transcript of the judgment, the order allowing the appeal, the bond and the approval thereof, and thereupon the appeal shall be dismissed, with

costs.

Whenever an appeal or writ of error shall be dismissed, this court may, in its discretion, affirm the judgment of the court below.

Assignment of Errors.

Rule 11. Appellants and plaintiffs in error shall assign errors in writing at the time of filing the transcript of the record, and each error shall be separately alleged and particularly specified.

When the error alleged is to the charge of the court, the part of the charge referred to shall be quoted totidem verbis in the specifications: provided, where the charge is divided into separate paragraphs or instructions, which are each duly numbered, and error is assigned as to one or more entire paragraphs or instructions, it shall be sufficient to designate the part of the charge referred to by giving the number prefixed to each paragraph or instruction so assigned for

error.

The same shall be signed by an attorney or counselor of the court.

Rule 12. If the appellant or plaintiff in error shall fail to assign error, the appeal or writ of error may be dismissed.

No formal joinder in error shall be required, but if the appellee or defendant in error shall not in any manner appear within the time allowed for filing briefs in his behalf, the cause may be heard ex parte, or the judgment or decree of the court below may, in the discretion of the court, be reversed without a hearing.

cussion of the errors stated, but the court Rule 13. Counsel will be confined to a dismay, in its discretion, notice any other error appearing of record.

Abstract of Record.

Rule 14. Appellants and plaintiffs in error in all cases shall, within twenty days after the return day, prepare and file with the clerk eight copies of a printed abstract of the record, in which they shall set forth the title of the cause, with the date of the filing of all papers in the court below, and a brief statement of the contents of each pleading, and shall set forth fully the points of the pleadings and evidence, and the points relied upon for the reversal of the judgment or decree. They shall also refer to the folio tions, on the margin of the abstract, in such numbers in the transcript and bill of exceptherein referred to may be easily found in manner that orders, pleadings and evidence

the record.

If the abstract filed shall not present the parts of the record to which reference is made in the assignment of errors, the appeal or writ of error may be dismissed.

Rule 15. Counsel for the appellee or defendant in error may, if he is not satisfied with the abstract of the record filed in the case, within twenty days after the same is filed, file with the clerk eight copies of such further abstract as he shall deem necessary to a full understanding of the merits of the cause.

Rule 16. In case the appellant or plaintiff in error shall neglect to file an abstract and brief as required, the opposite party may file the same and prepare the cause for hearing ex parte, and have the costs taxed therefor, or the court may dismiss the appeal or writ of error without notice.

Briefs of Counsel, etc.