The transcript of the record of the court below may be filed at
any day during the term succeeding the taking the appeal or
bringing the writ of error, if the appellee or defendant in error
has not in the meantime had the cause docketed and dismissed, but
this cannot be done after the expiration of that term except on
application to the court, where a remedy may be found if the
applicant was prevented from obtaining the transcript by fraud or
contumacy and is not guilty of laches.
When a return is made and the transcript deposited seasonably in
the clerk's office, jurisdiction is not lost by not docketing the
case before the lapse of the term, but it may still be docketed if
in the judgment of the court it is a case to justify it in
exercising its discretion to that effect.
The judgment in the court below in this case was entered July
27, 1887. The writ of error was dated October 3, 1887. It was filed
that day in the court below, and was returnable here to October
term, 1887, which closed May 14, 1888. The transcript reached the
clerk May 10, 1888, but the fee required by the rules was not paid
to the clerk. On January 13, 1890, the fee being paid, the
transcript was filed and the cause was docketed, and the appearance
of the plaintiff in error, who was a member of the bar of this
Court, was entered. On the 17th of November, 1890, the
Page 137 U. S. 616
defendant in error moved to dismiss the writ of error on the
ground of failure to file the transcript or docket the cause within
the prescribed period, and notified the plaintiff in error that it
would be submitted December 15.
Held:
(1) That the defendant in error was not bound to have the case
docketed and dismissed if he did not choose to do so.
(2) That the motion to dismiss for this cause could be made at
any time before hearing, or the court could avail itself of the
objection
sua sponte.
(3) That 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, the appearance was properly entered.
(4) That the plaintiff in error, being such a member, was bound
to know the rules of this Court with regard to giving security or
making a deposit with the clerk as a condition precedent to the
filing of the record and docketing of the case.
(5) That the laches of the plaintiff in error were too gross to
be passed over, and that the writ of error must be dismissed.
It is the duty of this Court to keep its records clean and free
from scandal, and in accordance therewith the court orders the
brief of the plaintiff in error to be stricken from the files.
On the 20th day of January, 1887, Thomas A. Green brought his
action at law in the Circuit Court of the United States for the
District of Colorado against Samuel H. Elbert, William E. Beck,
Joseph C. Helm, Merrick A. Rogers, Lucius P. Marsh, and J. Jay
Joslin, claiming damages in the sum of $50,000. April 18, 1887, he
filed his amended complaint in said cause, alleging a conspiracy on
the part of defendants Rogers, Marsh, and Joslin to bring about a
disbarment of plaintiff for filing a bill in equity, in the
discharge of his duties as solicitor of one Mrs. Newton and her
husband, against Joslin, making certain charges against defendants
Rogers and Marsh, and that the defendants Elbert, Beck, and Helm,
who were at the time judges of the Supreme Court of Colorado,
confederated and conspired with defendants Rogers, Marsh, and
Joslin to carry out and consummate the original conspiracy, and
entered judgment disbarring the plaintiff accordingly.
The complaint purported to be brought and was claimed to be
sustainable under sections 1979, 1980, and 1981 of the Revised
Statutes, in connection with section 5407 (Rev.Stat., 2d ed., pp.
347, 348, 1047).
Page 137 U. S. 617
Demurrers were filed on behalf of defendants Elbert, Beck, and
Helm, and also of defendants Rogers, Marsh, and Joslin, which, upon
argument, were sustained by the court, and judgment entered for the
defendants, July 27, 1887.
On the third of October, 1887, plaintiff filed his bond, which
was duly approved, and a writ of error was allowed and issued, and
on the same day he filed a stipulation that the record might be
filed in this Court, and the cause be docketed at any time during
the October term, 1887, of the Court. Citation, returnable to
October term, 1887, was taken out and served. On the 20th of April,
1888, the plaintiff filed in the circuit court in said cause his
praecipe for transcript of record, which was accordingly made out,
as directed, and certified by the clerk of that court May 5, 1888.
On that day, plaintiff wrote to the clerk of this Court as
follows:
"I herewith send you a record in a case of my own. Will send you
a docket fee and a stipulation to submit under Rule 20 in a few
days. Please send me two blanks for entering the appearance of
attorneys for both parties."
This letter and the transcript reached the clerk May 10, 1888,
and he replied:
"Yours of the 5th inst., also transcript of record in case of
Green v. Elbert et al., duly received. I enclose two blank
orders for appearance as requested. I notice what you say as to
furnishing deposit on account of costs and sending stipulation to
submit case under the 20th rule."
Nothing further appears to have been done in the premises until
on January 7, 1890, plaintiff in error wrote to the clerk as
follows:
"I find on looking over my books at New Year's that I had
forgotten to send you a docket fee in the case of Thomas A. Green
v. Samuel Elbert William E. Beck, Joseph C. Helm, Merrick A.
Rogers, Lucius P. Marsh, and J. Jay Joslin. This record was sent up
from the U.S. Circuit Court for the District of Colorado a year or
more ago, on writ of error. If you have not docketed the case
please do so at once, and inform me by return mail. I herewith send
you draft on New York for $25."
Upon the receipt of this letter, January 13, 1890, the
transcript of record was filed, and the clerk wrote on the
15th:
"Yours of the 7th inst., enclosing draft on N.Y. for $25, on
account of deposit in case of Green
Page 137 U. S. 618
v. Elbert et al., duly received, and I have docketed the case
No. 1,541 for Oct. term, 1889, entering your appearance of counsel
for pl'ff in error."
To this plaintiff in error relied January 20th: "Yours of the
15th inst. at hand. I have signed, and herewith return my
appearance in the case of Thomas A. Green v. Samuel E. Elbert
et al., No. 1,541."
November 17, 1890, defendants in error filed a motion to
dismiss, with which was united a motion to affirm, and a brief in
support thereof, and gave notice to plaintiff in error that such
motion would be submitted on the 15th day of December. On the 13th
of December, a lengthy affidavit of plaintiff in error was filed in
the cause, stating that plaintiff
"is now and has been for many years past a member of the bar of
the United States Circuit Court for the District of Colorado, and
also a member of the bar of the Supreme Court of the United
States;"
that he had been attending to this suit in the circuit court and
in the Supreme Court in person; that on or about the 5th day of
May, 1887 [1888], he caused the transcript of the record, the writ
of error, citation, and bond, duly certified, to be forwarded to
the clerk of the Supreme Court in accordance with a stipulation
that the record and writs might be returned at any time during the
October term, 1887, of the Supreme Court and,
"as he now remembers and believes, that he requested the Clerk
of the Supreme Court at the City of Washington, to file said record
as soon as the same should reach him, and affiant further states
that he has not now any remembrance or recollection of having
neglected anything at all on his part which was necessary for him
to do in order to have said record filed in the clerk's office of
the Supreme Court of the United States as soon as the same reached
the said clerk in the City of Washington;"
that he resides more than two thousand miles from the capital,
and never has been and is not now familiar with the rules and
customs of the clerk, and with the manner in which business is
transacted by him in his office, and that, if he did not comply
with all the requirements of the clerk with regard to the filing of
the record, it was because he did not understand the same, and that
he never has at any time knowingly and intentionally neglected
anything
Page 137 U. S. 619
whatever pertaining to the sending and filing of the record or
the prosecution of the suit, but always intended to use all due
diligence in having the record sent and filed, and in vigorously
prosecuting his suit; that he has had no time or opportunity,
living at the distance he does and being compelled to prepare a
brief and argument on the motion to dismiss, to investigate the
reason why said record was not duly filed as soon as sent to the
clerk; that whatever may have been the reason, affiant has not
intentionally in any manner neglected what the supposed and
believed was necessary for him to do in order to have the record
filed, and has no knowledge or information why it was not filed
"from early in May, 1887, [1888,] until the 13th day of January,
1890," and that if the clerk had any good reason for not filing the
record, or if affiant neglected anything that was necessary for him
to do to secure it, this was the result of mistake and ignorance
and not of intentional neglect or delay, and he does not believe
himself to be in any manner to blame; that defendants in error made
no effort to have the case dismissed until nearly one year after
the record had been filed, and did not, during the time the record
remained unfiled in the office, "if there ever was any such time;"
that for at least one year past, affiant has been watching said
case with great care and diligence, and had just forwarded a
complete assignment of errors, and had said case prepared so far as
he could prepare the same at the time he received notice of the
motion to dismiss, and was awaiting the usual time when the record
in said case should be printed, and he could file his brief and
argument, and be ready to submit the case as soon as reached on the
docket; that he has several times attempted to get the attorney for
the defendants in error to submit the case under Rule 20, but said
attorney has informed him that the defendants in error would not
consent to anything of the kind, or agree to anything whatever that
would speed the final hearing;
"that he supposed it was a matter of course, upon the return of
the writ of error to the Supreme Court of the United States from a
circuit court of the United States, that the clerk of the said
Supreme Court would immediately, on such return of such writ and
a
Page 137 U. S. 620
transcript of the record, together with the necessary citation
and bond, all regularly prepared at once docket said cause without
further delay, or without anything more to be done on the part of
affiant. Affiant does not now remember whether or not he sent to
said clerk a docket fee, and affiant states that he may not at that
time have known [or] regard[ed] it as absolutely necessary to do so
before a record on the return of the writ of error would be filed
in said office, but affiant states that, according to the best of
his remembrance, he has sent the said clerk the said docket fee,
and that he sent the same just so soon as he knew the amount
thereof, and the said clerk demanded the same, and affiant further
states that, if there was any delay whatever in this regard, it was
not at all intentional on his part, and was a mere matter of
mistake, and affiant further states that he does not now remember
that there was any delay or any mistake made by him in sending said
docket fee."
Affiant further says that he has prepared full and elaborate
printed briefs, on the merits as well as on the motion, which he
asks the Court carefully to examine, and reiterates inadequacy of
time to investigate the cause or reason why the record was not
filed in the time required, if such was the case, as the motion
"does not state anything at all to explain why said record was
not filed in that time, but simply states that the filing mark upon
said record shows that the same was filed in the clerk's office on
the 13th day of January, 1890. . . . Affiant further states that he
has made this affidavit wholly from his remembrance of what he has
done and intended to do touching the filing of said record, and
from what he understands or did not understand in regard to such
matters in the office of the clerk of the said Supreme Court, and
if anything in this affidavit should turn out not to be wholly
correct, it is because affiant has not now and does not remember
having had any information or knowledge to the contrary of what he
has stated above in this affidavit. "
Page 137 U. S. 621
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
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 meantime
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 Central Railway Co.,
128 U. S. 258;
Evans v. State Bank, 134 U. S. 330.
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.
United
States v. Gomez, 3 Wall. 752,
70 U. S. 763;
Ableman v.
Booth, 21 How. 506;
Griggsby 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. United States,
102 U. S. 575;
Richardson v. Green, 130 U. S. 104.
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
Page 137 U. S. 622
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.Stat. ยง 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
months 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, Griggsby 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 Stat. 631,
c. 143, 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 endorsing the
transcript
Page 137 U. S. 623
of the record is fixed by the rule at five dollars, and the
twenty-five dollars above referred to covers that sum and the
estimated costs up to the time for printing.
The plaintiff in error was 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 twenty 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.
Page 137 U. S. 624
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.