If the defendant in error files a copy of the record before the
expiration of the time which is allowed to the plaintiff in error
to file it, and afterwards the plaintiff in error files the record
in proper time, the case made by the defendant in error will be
dismissed.
The defendant in error filed the record, and docketed the case
on the 24th of November, 1855, and on the ensuing 1st of December
the plaintiff in error filed his copy of the record, within the
period allowed him by the 63d rule of court.
Upon which motion, MR. JUSTICE McLEAN delivered the opinion of
the Court.
In the above case, a motion was made by the defendant that he be
permitted to withdraw the record filed and docketed by him, and
have it printed at his own expense, without losing its place on the
docket.
Rule 63, published in 16 How., requires that when an appeal on
writ of error shall be taken to this Court thirty days before the
commencement of the ensuing term, the record shall be filed within
the first six days of the term and if the plaintiff in error or
appellant shall fail to comply with this rule, the defendant in
error or appellee may have the cause docketed and dismissed, upon
producing a certificate of the clerk of the court wherein the
judgment or decree was rendered, stating the cause, and certifying
that such writ of error or appeal has been duly sued out and
allowed.
But the rule states, the defendant in error or appellee may, at
his option, docket the case and file a copy of the record with the
clerk of the court, and if the case is docketed and a copy of the
record filed with the clerk of this Court, by either party, within
the periods of time above limited and prescribed by this rule, the
case shall stand for argument at the term.
The above case was docketed in this Court by the defendant in
error before the expiration of the time allowed the plaintiff to
file the record.
The plaintiff in error filed the record and had the cause
docketed before the expiration of the six days after the
commencement of the term; he was therefore within the rule, and was
guilty of no laches. Had he failed to do this, the defendant, on
the certificate of the clerk, might have docketed and dismissed the
cause or he might have procured the record and docketed the case,
which, under the rule, would stand for argument at the present
term. But the case cannot be dismissed or docketed by the defendant
unless the plaintiff in error or appellant shall be in default.
The above cause is therefore
Dismissed.
Order
Mr. Gillett, of counsel for the defendant in error, having moved
the Court on a prior day of the present term for leave to withdraw
this record in order to have the same printed forthwith, and it
appearing to the court that this record was filed and docketed at
the instance of the defendant in error on the 24th
Page 59 U. S. 30
day of November last, and it also appearing that the plaintiff
in error had filed the record and docketed the case on the 1st of
December last, within the period allowed him by the 63d rule of
Court, it is considered by the Court that this cause was filed and
docketed prematurely by the defendant in error, and should be
dismissed -- whereupon it is now here ordered by this Court that
this cause be stricken from the docket and that the record thereof
be delivered to the defendant in error.