269 F. 247 | 9th Cir. | 1920
(after stating the facts as above). Rule 75 of the Equity Rules makes it the duty of the appellant to file with the clerk of the court in which the appeal is prosecuted a praecipe for the portions of the record to be incorporated in the transcript on appeal, and requires the appellee, if he shall desire an additional portion of the record incorporated, to file with the clerk a praecipe within 10 days unless the time shall be enlarged by the court or judge. The rule also prescribes how the evidence shall be included and puts the duty of condensing and stating the evidence primarily upon the appellant, “who shall prepare his statement thereof and lodge the same in the clerk’s office for the examination of the other parties at or before the time of filing his praecipe under paragraph ‘a’ of the rule.”
Appellant is required to notify the other parties of such lodgment, and of a time and place when he will ask the court or judge to approve the statement, the time so made to be at least 10 days after such notice. At the expiration of the time named, or such further time as the court or judge may allow, “the statement, together with any objections made or amendments proposed by any party, shall be presented to the court or judge, and if the statement be true, complete, and properly prepared, it shall be approved by the court or judge; and if it be not true> complete or properly prepared, it shall be made so under the direction of the court or judge, and shall then be approved. When approved it shall be filed in the clerk’s office and become.a part of the record for the purposes of the appeal.” In case of differences between the parties concerning directions or general contents of the record prepared on appeal, they shall be submitted to the court or judge, and shall be covered bv directions which the court or judge may give on the subject.
It will be noticed that rule 75 fixes no time within which the statement of the evidence must be settled and filed in order to become a part of the record for the purposes of the appeal. The Court of Appeals for the Sixth Circuit, in General Equity Rule 75, 222 Fed. 884, 138 C. C. A. 574, said that while it is a better practice to complete such a step before perfecting the appeal, and if a term of court should expire
In United States v. Great Northern Railway Co., 254 Fed. 522, 166 C. C. A. 80, we held that, in an action in equity to cancel a patent, a motion to strike what was termed a bill of exceptions from the record was without merit, and said:
"A statement of the evidence, with the approval of the judge, is ail that is required in an equity cause, where an appeal is to be prosecuted. Federal Equity Rule 75 (198 Fed. xl, 115 C. C. A. xl). An approved statement of the evidence is really what was filed in the present case, and not a bill of exceptions.” Westermann Co. v. Despatch Printing Co., 283 Fed. 609, 147 C. C. A. 417.
It is clear that no rule of the District Court can conflict with Ihe rules of the Supreme Court. It being our opinion that the District-Court had not lost jurisdiction merely because the record was not filed within 10 days after the entry of decree, or within any extension granted, the order to show cause must be granted, and will issue accordingly.
Motion granted.