Green v. Elbert/Opinion of the Court

by Melville Fuller

United States Supreme Court

137 U.S. 615

Green  v.  Elbert

The transcript of the record may be filed at any day during the term succeeding the taking of an appeal or the bringing of a writ of error, if appellee or defendant in error has not in the mean time had the cause docketed and dismissed. But this cannot be done after the expiration of the term, because the writ of error has then become functus officio, and the appeal has spent its force. Credit Co. v. Arkansas Cent. Ry. Co., 128 U.S. 258, 9 Sup. Ct. Rep. 107; Evans v. Bank, 134 U.S. 330, 10 Sup. Ct. Rep. 493. Remedies may be found where the plaintiff in error or appellant is entirely free from laches or want of diligence, and is prevented from obtaining the transcript by the fraud of the other party, the order of the court, or the contumacy of the clerk. U.S. v. Gomez, 3 Wall. 752, 763; Ableman v. Booth, 21 How. 506; Grigsby v. Purcell, 99 U.S. 505. When, however, a return is made, and the transcript seasonably deposited in the clerk's office, jurisdiction is not lost by the lapse of the term, but the cause may still be docketed, if the circumstances are such as to justify the court in exercising its discretion to that effect. Edwards v. U.S., 102 U.S. 575; Richardson v. Green, 130 U.S. 104, 9 Sup. Ct. Rep. 443. This we cannot be called upon to do arbitrarily. To the proper conduct of the business of this court rules are necessary, and, having been prescribed, reasonable compliance with them is expected, and must be insisted upon. When they are disregarded, dispensation from the consequences can only be extended where the circumstances furnish adequate excuse. Were this otherwise, our regulations might become more honored in the breach than the observance, and the recognition of due procedure would be seriously weakened and impaired. The writ of error in this case bears date October 3, 1887, and was filed on that day in the circuit court. It was returnable to October term, 1887, of this court, which term closed by adjournment on May 14, 1888. The transcript reached the clerk May 10, 1888, and if then docketed would have been in time. And, as jurisdiction was kept alive by the delivery of* the record, this court had power to direct it to be subsequently placed upon the docket, or to treat the act of the clerk in docketing it as providently done. The transcript was filed and the cause docketed January 13, 1890. The judgment sought to be revised was entered July 27, 1887, and it thus appears that the case was not docketed until the expiration of considerably more than two years after the entry of such judgment, the statutory limitation upon the bringing of the writ of error. Rev. St. § 1008. The defendants in error filed their motion to dismiss on November 17, 1890, and gave notice that it would be submitted December 15th following. They were not bound to docket and dismiss the case if they did not choose to do so, and the plaintiff in error occupies no position entitling him to complain because they did not. Nor did they wait until the two years had run before making their motion. On the contrary, that time had expired some montns before the transcript was filed. The motion may be made at any time before hearing, or the objection be availed of by the court sua sponte, (Grigsby v. Purcell, 99 U.S. 505,) although delay in presenting the point has sometimes been referred to as an element, in combination with others, justifying leniency in its disposition.

By rule 9, the appearance of counsel for the party docketing the case must be entered upon the filing of the transcript. As the plaintiff in error was a member of this bar, and notified the clerk in transmitting the transcript that the case was one of his own, we think his appearance was properly entered when the record was filed, and might have been so on May 10, 1888, if the case had then been docketed. By rule 10, the plaintiff in error, or appellant, is required, on docketing a case and filing with the to enter into an undertaking with the clerk, with surety to his satisfaction, for the payment of his fees, or otherwise, to satisfy the clerk in that behalf. The practice, since the act of March 3, 1883, (22 St. 631,) has been for parties to deposit the sum of $25 in lieu of a fee-bond, and the rule provides for the subsequent advance of the cost of printing the record and the fee for its preparation. The fee for docketing a case and filing and indorsing the transcript of the record is fixed by the rule at $5, and the $25 above referred to covers that sum and the estimated costs up to the time for printing. The plaintiff in errr w as a member of this bar, and especially bound to know the rules, and that it was a condition precedent to the filing of the record and docketing of the case that security should be given to or that a deposit should be made with the clerk. But knowledge need not be imputed, for by his letter of May 5, 1888, accompanying the record, plaintiff in error showed actual knowledge of the necessity for the deposit, and assured the clerk that it would be forwarded, while at the same time he requested blanks for the entry of appearance of counsel on both sides. In view of this letter, it is impossible for us to doubt that the plaintiff in error was, as every member of our bar should be, sufficiently acquainted with our rules and the conduct of business in the clerk's office. But he forwarded no deposit or fee-bond, nor paid the specified fee for filing the transcript, nor transmitted a formal appearance, though blanks had been sent him May 10, 1888, as requested. On January 7, 1890, a year and eight months after his letter of May 5, 1888, the plaintiff in error remitted to the clerk the sum of $25, which is the deposit required, and wrote that he found, on looking over his books at New Year's, that he had forgotten to send 'a docket fee' in the case, and requested the case to be docketed at once, if that had not already been done. The transcript was accordingly filed, and the cause docketed January 13, 1890, as already stated, and plaintiff in error informed thereof. We regard the laches of plaintiff in error as too gross to be passed over. We cannot treat his omission to forward the deposit soon after May 5, 1888, nor the 20 months' neglect that thereupon ensued, as attributable to ignorance or inadvertence, or as excusable upon any ground heretofore deemed sufficient. Mere carelessness in the inception may have finally resulted in forgetfulness; but we cannot, therefore, absolve him from the penalty legitimately attaching to this disregard of our rules. The writ of error must be dismissed.

We regret that we find ourselves compelled to add something further. The printed argument of plaintiff in error contains many allegations wholly aside from the charges made in his complaint, and bearing reproachfully upon the moral character of individuals, which are clearly impertinent and scandalous, and unfit to be submitted to the court. It is our duty to keep our records clean and free from scandal. The brief of the plaintiff in error will be stricken from the files, and the writ of error dismissed, and it is so ordered.

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