Page images

be made out, or if he has given such direction, that he has not tendered the fees therefor.

V. All transcripts of records hereafter sent to this court, shall be on paper of uniform size, according to a sample to be furnished by the clerk of the court, with a blank margin one and a half inches wide at the top, bottom and side of each page, and all pleadings, proceedings and evidence shall be chronologically arranged.

VI. The pages of the transcript shall be numbered, and shall be written only upon one side of the leaves.

VII. Each transcript shall be prefaced with an alphabetical index to its contents, specifying the page of each separate paper, order or proceeding, and of the testimony of each witness, and shall have at least one blank or flying cover.

VIII. Marginal notes of each separate paper, order or proceeding, and of the testimony of each witness, shall be made throughout the transcript.

IX. The transcript shall be fastened together on the left side of the pages, by ribbon or tape, so that the same may be secured and every part conveniently read.

X. The transcript shall be written in a fair, legible hand, and each paper or order shall be separately stated.

XI. No record which fails to conform to these rules, shall be received or filed by the clerk of the court.

XII. For the purpose of correcting any error or defect in the transcript from the court below, either party may suggest the same in writing to this court, 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. If the attorney of the adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion must be accompanied by an affidavit proving the existence of the error or defect alleged.

XIII. Exceptions to the transcript, statement, the appeal bond, notice of appeal, or to its service, or proof of service, or any technical objection to the record affecting the right of the appellant to be heard on the points of error assigned, must be taken at the first term after the transcript is filed ; and must be noted in writing and filed at least one day before the argument, or they will not be regarded. In such cases, the objection must be presented to the court before the argument on the merits.

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

XV. The calendar of each term shall consist only of those causes in which the transcript shall have been filed five days before the commencement of the term, unless by the written consent of the parties; provided, that all cases, in which the appeal is perfected, and the statement settled, as provided in rule second, and the transcript is not filed five days before the first day of the term, may be placed on the calendar on motion of the respondent, upon the filing of the transcript.

XVI. All causes from the same judicial district shall be set together, and in the order of the number of the district, commencing with the first, except that the calendar shall end with the Sacramento causes, preceded by those from San Francisco, and except also that causes in which the people of the state are a party, shall be placed at the head of the calendar.

XVII. Before the argument, both the appellant and respondent shall furnish to each other and to each of the justices of the court, a copy of his points and authorities ; or either party may file one copy

thereof with the clerk, who shall cause the copies to be made for the use of the court, and may tax the same in his bill of costs.

XVIII. A list of the authorities to be used in the argument of any cause shall, if applied for, be furnished to the counsel of the adverse party one day before the hearing.

XIX. No more than two 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 for the appellant shall be entitled to open and close the argument. Each counsel will be allowed one hour.

XX. All opinions delivered by the court shall, after the expiration of twenty days from the time they are delivered, be recorded by the clerk, who shall, after recording the same, deliver the originals, with a transcript of the judgment, order or decree of the court thereon, to the reporter.

XXI. The clerk shall allow the reporter to take with the opinions, the transcript and briefs in the cases; but not more than four transcripts shall be taken from his office at the same time, and for each transcript taken the clerk shall require a receipt from the reporter. The reporter may retain the transcripts, subject to the orders of the court, or of one of the judges, so long as it may be necessary to enable him to report properly the decisions of the court.

XXII. All motions for a rehearing shall be upon petition in writing, presented within ten days after any final judgment is rendered, or order made by the court, and no argument will be heard thereon. No remittitur to the court below shall be issued until the expiration of the ten days herein provided, unless upon some good cause shown, and upon notice to the other party, or by written consent of the parties, filed with the clerk.

XXIII. The petition for rehearing shall not operate as a stay of






proceedings without the order of the court, or in vacation, of two of the judges.

XXIV. On a rehearing, in cases hereafter arising, if the decree, judgment or order of the court, as to which a rehearing is granted, be not in the opinion of two of the judges erroneous, the same shall stand.

XXV. On a reversal of a judgment, a certified copy of the opinion in the case shall be transmitted to the court below.

XXVI. No paper shall be taken from the supreme court-room, or clerk's office, except by order of the court, or of one of the judges; and except as provided by the twenty-first rule.

XXVII. No writ of error, or of certiorari, shall be issued, except upon order of one of the judges, upon petition, showing a proper case for the issuance of the same.

XXVIII. When a writ of error is issued, upon filing the same, and a sufficient bond or undertaking with the clerk of the court below, and upon giving notice thereof in writing to the opposite party or his attorney, and to the sheriff, it shall operate as a supersedeas. The bond or undertaking shall be substantially the same as required in cases on appeal.

XXIX. The writ of error shall be returnable within thirty days, unless otherwise specially directed.

XXX. The rules and practice of this court respecting appeals, shall apply, so far as the same may be applicable, to proceedings upon a writ of error.

XXXI. The writ shall not be allowed after the lapse of one year from the date of the judgment, order or decree, which is sought to be renewed, except under special circumstances.

XXXII. When causes are placed upon the calendar, parties shall be primarily liable for costs, as follows: 1. If by the appellant, he shall first be liable. 2. If by the respondent, or by consent, then both parties. In no civil case shall the clerk be required to remit the final papers until his costs are paid.

It is ordered that the foregoing be adopted, and that all preceding rules be abolished.

I, CHARLES S. FAIRFAX, clerk of the supreme court of the state of California, do certify the foregoing to be a true copy of the rules of the supreme court of the state of California, adopted May 21st, 1859.


RULE BY THE CLERK. In future, no transcript of record from a lower court will be filed in the supreme court unless accompanied by thirty dollars in cash.

C. S. F.

« PreviousContinue »