RULE 10. The party bringing the cause into this court shall file, with the transcript, or, where the transcript is filed for a supersedeas, within ten days, and on or before the first day of the term at which the cause stands for trial, two copies of a complete abstract, printed or plainly written, of so much of the transcript as is necessary to present the errors assigned and relied upon, referring, in such abstract, to the appropriate pages, and lines of the pages, of the transcript, by numerals; one of which copies of the abstract may be withdrawn by the counsel of the appellee, on application to the clerk, and receipting therefor. A failure to comply with this rule shall entitle the appellee to have the case submitted, upon filing an abstract and a brief for the use of the court; or the case may be continued at the appellant's cost; or the appeal may be dismissed, as the appellee may elect; but no case shall be submitted without a compliance with this rule.

RULE 11.-In case the appellant fails to comply with the foregoing rule, in any cause where the appellee shall assign cross-errors, the counsel for the appellee shall file, with such assignment of cross-errors, abstracts as required by the above rule, and a failure to do so shall be deemed a waiver of the cross-errors assigned.

RULE 12.-The counsel of the opposite party, if he be not satisfied with the abstracts filed, may file such further abstracts, in discharge of the rule, as he may deem to be required, upon the submission of the cause.

RULE 13.-All causes pending in the Supreme Court, if submitted within one year from the date at which they are filed, may be submitted upon plainly written, or printed, briefs. If not submitted within one year from the date of filing, except where interlocutory orders may excuse the delay, they will be dismissed on the call of the docket, unless submitted on printed brief. In all cases the clerk shall note the filing of a brief, the party by whom it is filed, and place it in the record.

RULE 14.-No counsel will be permitted to speak, in the argument of any cause, more than one hour, without the special leave of the court.

RULE 15.-Counsel will not be heard orally, unless a plainly written or printed brief be first filed, of the points intended to be made, and the authorities intended to be cited in support of them, arranged under the respective points, and no other book or case shall be referred to in the argument. If one of the parties omit to file such a statement, he cannot be heard, except on the points made and authorities cited by the opposite party. Two printed or plainly written copies of the points and authorities required by this rule, shall be filed with the clerk, three days before the case is called for argument, one to be retained by the clerk, and the other for the counsel of the opposite party; and points and authorities in reply may be cited and filed at any time before the argument begins. When no counsel appears for one of the parties, and no printed or written brief or argument is filed, only one counsel shall be heard for the adverse party. But if a printed or written brief or argument is filed, the adverso party will be entitled to be heard by two counsel.

RULE 16. The causes will be called for argument, beginning with those from the first circuit, in the order in which the same shall have been

RULES OF THE SUPREME COURT.

XV

docketed, and so continuing by circuits, in numerical order, on such days as the clerk, under the direction of the court, shall determine, of which notice shall be given.

WITHDRAWAL OF PAPERS.

RULE 17.-The clerk must not, after the abstracts have been made, permit the papers of a cause to be taken from the State Ilouse, except by the judges. The clerk may, upon his own responsibility, permit the party entitled to make such abstract to take the papers for a period not exceeding three days, having power to require such reasonable security as he may decm proper.

NAMES OF PARTIES.-PROCESS.

RULE 18.-The assignment of errors shall contain the full names of the parties, and process, when necessary, shall issue accordingly.

APPEARANCES.

RULE 19.-Appearances to suits in this court shall be entered in the clerk's office in writing.

RULE 20.-A joinder in error, or the filing of an answer by the party in person, or by his attorney thereunto lawfully authorized, shall be deemed and taken as an appearance in writing under the above rule.

INTERCHANGE OF BRIEFS.

RULE 21.-Attorneys upon opposite sides will be required, upon request, to interchange briefs.

BILL OF EXCEPTIONS CONTAINING THE EVIDENCE.

RULE 22.-In every bill of exceptions purporting to set out the evidence, upon motion for a new trial overruled, it must be stated, in appropriate language, that all the evidence given in the cause is contained therein; and the 30th rule, heretofore adopted by this court, is rescinded, as to all causes now pending.

PROSECUTING ATTORNEY.

RULE 23.-Prosecuting attorneys will not be required to file printed briefs in cases wherein they appear as such for the defendant.

DISTRIBUTION OF CAUSES.

RULE 24.-After submission, the papers shall be delivered by the clerk to the chief justice, who shall have control thereof until the cause is decided in full bench, and the papers are delivered over to the judge who may be selected to prepare the opinion therein; and the chief justice shall keep a private memorandum of such disposition.

CLERK'S DUTIES.

RULE 25.-The clerk may, at any time, on payment of proper fees, deliver to any party to a cause pending, a copy of the abstract or points made therein.

RULE 26. The clerk shall enter upon the court docket, in a proper column, the fact, where such is the case, that the appeal was taken in term

time, and duly perfected by filing the record within the time limited. When the appeal is not taken as above, the clerk shall note the date of service of process, or last publication of notice. If process has not been served, or notice given, that fact shall be noted.

OPINIONS, WHEN TO BE CERTIFIED, ETC.

RULE 27.-Opinions and judgments pronounced by this court, shall not be certified to the lower court, by the clerk of this court, to be there operative under section 571, 2 R. S., 1852, except in criminal cases, unless by order of this court, until the expiration of sixty days; and the clerk is directed to certify a copy of this rule to the lower court, in any instance where copies of the opinions, etc., have been sent down, within the time, without such order of the court, with direction to the clerk of such court to return the opinion.

APPEALS, ETC.

RULE 28-Where an appeal is taken in term, as provided for in section 655 of the code, and the transcript is not filed in the office of the clerk of this court within the time limited by that section, the appeal so taken shall be deemed to have been abandoned, and if a transcript is afterwards filed, an appeal shall be considered as taken by the filing of the transcript, as provided for in the next following section of the code, and the appellee, in such case, shall not be regarded as in court, without notice or voluntary appear

ance.

RULE 29.-Where-an appeal is taken after the close of the term, by notice below, as provided for by the first branch of section 556 of the code, the transcript must be filed within sixty days from the time of taking the appeal; otherwise the appeal so taken will be deemed to have been abandoned, and if a transcript is afterwards filed, an appeal shall be considered as taken by the filing of the transcript, as specified in the foregoing rule, and the appellee shall not be regarded as in court without further notice or voluntary appearance.

SUPREME COURT REPORTER.

RULE 30.-The opinions of this court shall not be delivered to the reporter until the expiration of sixty days from the determination of the cause, and in cases where petitions for a rehearing are filed, the opinions therein shall not be delivered to the reporter until such petitions are overruled.

WITHDRAWAL OF PAPERS AFTER DISMISSAL,

RULE 31.-When an appeal shall have been dismissed, the transcript of the record of the court below shall not be withdrawn from the files of this court, to be used in another appeal, or for any other purpose, without special leave of the court, in term, or of a judge thereof, in vacation, and only on good cause shown by affidavit.

ORDERED, By the court, that all prior rules of this court, not embraced in the foregoing, be rescinded, except so far as the same apply to cases already submitted.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF INDIANA,

AT INDIANAPOLIS, MAY TERM, 1866, IN THE FIFTIETH YEAR OF THE STATE.

STURGIS and Others v. ROGERS and Others.

ATTACHMENT.-GARNISHEE.-APPEAL BOND.-A instituted proceedings in attachment against B and C, and caused a summons to be issued against the Central Bank as a garnishee, upon an affidavit alleging that the bank was indebted to C. The answer of the bank to the process of garnishment was filed by P, "as president" thereof, and admitted an indebtedness to C. Afterwards D and E also began proceedings in attachment against the same defendants, but it did not appear from the record that they became, or asked to become, parties to the attachment proceedings instituted by A. Judgment was rendered in favor of A against B and C, and also against "P, president of the Central Bank," as garnishee, for the amount owing by the bank to C, and an order was made "that after the payment of the costs and the amounts that are due to the several plaintiffs in the proceedings," the residue of the amount owing by the bank should be paid to B and C. D and E also took separate personal judgments by default against B and C. A transcript of all these proceedings was afterwards filed in the Supreme Court, on appeal, upon which errors were assigned as follows: "B and C v. A, as attaching creditor, and D and E."-"P, as president of the Central Bank v. A." The above named P, as president, and B and C come and say," &c. The appeal bond was made payable to A alone, VOL. XXVI.-1.

Sturgis and Others v. Rogers and Others.

and recited that "Whereas the said P had prayed an appeal," &c., “from a judgment rendered against him in favor of the above named obligees," &c. The judgment was afterwards affirmed in the Supreme Court. Suit by A, D and E upon the appeal bond.

Held, that under the general banking law the president was the only proper person to answer for the bank to the process of garnishment. Page 8. Held, also, that if the judgment against the bank should have been in form against "P, as president of the Central Bank," instead of "P, president of the Central Bank," the mistake must be treated as a clerical omission, which would not invalidate the judgment. Page 8.

Held, also, that though the appeal was by P, as president of the bank, from the judgment of A only, yet as the supersedeas operated to stay all proceedings on the judgment, the appeal bond, though in form to A only, would have inured also to the benefit of D and E, if they had become parties to the attachment suit of A in such a manner as to make the judgment against the garnishee available to them. Page 8. Held, also, that as the record fails to show that D and E ever became parties to the attachment suit instituted by A, the judgment against the garnishee was not available to them. The mere statement of the clerk in the transcript, after the record of A's suit, that "the following cases are filed as claims under said attachment," followed by a record of their suits, was not sufficient to make them parties to that suit. Page 9. Held, also, that while there was but one transcript filed in the Supreme Court, there were, in fact, two appeals. One by P, as president, from the judgment against the bank as garnishee, and one by C and D from the several personal judgments against them, and the bond filed was applicable to the appeal by the garnishee only. Page 10.

Held, also, that there could be no recovery by D and E upon the appeal bond, because they were not beneficially interested in the judgment against the garnishee from which the appeal was taken. Page 12. Held, also, that the erroneous recital in the appeal bond that judgment had been rendered against P, (as an individual,) did not affect the validity of the bond, under the statute. Page 11.

Held, also, that the statute, (2 G. & H., sec. 790, p. 333) was intended to cure defective bonds, and to impart to them the effect which they would have by law if perfect, but it cannot be so applied as to give to an instrument an effect distinctly different from that which was actually contemplated by the parties, or to impose a liability which the obligor never intended to assume. Page 12.

Held, also, that the validity of A's judgment could not be called in question in the suit on the bond, the judgment of the Supreme Court affirming the judgment below being final and conclusive on that question. Page 14.

APPEAL from the Marion Common Pleas.

FRAZER, J.-This was a suit by Rogers and several others