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holding consent." The Rules contain no other provisions for replying to motions. Nevertheless, unless the motion is clearly of a type which will not be opposed, or when no time is available, the Clerk will allow the opponent of the moving party a reasonable time-usually about two weeks-to file a reply. opposing counsel intends to file a reply, he should communicate with the Clerk in advance, so that the Clerk will know that a reply is forthcoming, and withhold distribution of the motion to the Court.

If

The motions which are submitted to the Court ex parte, without awaiting a reply, are motions for an extension, enlargement or reduction of time, motions to dismiss one's own appeal or petition, motions to substitute one federal officer for another, motions for leave to proceed in forma pauperis, motions to withdraw appearance of counsel and others of similar import.

F. Particular motions

It is neither necessary nor possible to enumerate all the kinds of motions which may be filed in the Supreme Court, or to describe separately the procedure as to each. Most of them are referred to at the appropriate point elsewhere in this book, or in the preceding pages. The following few comments with respect to particular kinds of motions may be helpful.

1. A motion to dismiss one's own appeal or petition for certiorari is granted as a matter of course.1 For a form, see p. 434, infra. Rule 35 provides that during the Court's vacation (in the summer) cases may be dismissed by the Clerk on receipt of a written agreement of the parties to that effect. The agreement should stipulate the terms as respects costs and all fees due the Clerk must be paid.

1 See Latham's and Deming's Appeals, 9 Wall. 145; United States v. Campbell, 291 U. S. 686, 648. Compare the rule as to the right of a plaintiff to dismiss his suit. Jones v. Securities and Exchange Commission, 298 U. S. 1, 19-20, and cases cited; Cone v. West Virginia Paper Co., 330 U. S. 212, 217.

2. Rule 7 (3) provides in part,

"No motion by respondent to dismiss a petition for writ of certiorari will be received. Objections to the jurisdiction of the court to grant writs of certiorari may be included in briefs in opposition to petitions therefor."

Motions to dismiss an appeal on jurisdictional grounds are made in the manner prescribed in Rule 12 (3), supra, pp. 236-9. But after the petition for certiorari has been granted or the Court ruled upon the jurisdictional statement in an appeal, a motion to dismiss "will be received if not based upon grounds already advanced." Forty printed copies of such motions must be filed, and the respondent shall have twenty days to file a printed reply (twenty-five days in certain western states and the outlying possessions). Rule 7 (3), paragraph 3.

XIV

LOSS OF JURISDICTION BY

MOOTNESS OR ABATEMENT

The Supreme Court, like any other court, may lose jurisdiction over a case because of the occurrence of facts outside the record which terminate the controversy. The Court has constitutional jurisdiction only over actual cases and controversies, between adverse interests, with respect to which the Court's judgment will be effective. If the controversy becomes academic by reason of changing circumstances, the Court's jurisdiction ceases.

A controversy may terminate in legal contemplation for a variety of reasons. A case may be settled.1 An injunction proceeding may become meaningless if an act sought to be enjoined has irretrievably occurred. A controversy may end if the statute which is the basis for the action or for the conduct complained of is repealed or modified.3 A criminal judgment may become moot when a defendant-appellant fully serves his sentence and there are no legal after-effects. On the other hand mere cessation of unlawful activities does not render moot a suit for an injunction if it is possible for the defendant to

1

Stewart v. Southern Ry. Co., 315 U. S. 283, 784.

2 Brownlow v. Schwartz, 261 U. S. 216; Richardson v. McChesney, 218 U. S. 487 (election).

3 United States v. Alaska S. S. Co., 253 U. S. 113; Berry v. Davis, 242 U. S. 468; Natural Milk Producers v. San Francisco, 317 U. S. 423.

* St. Pierre v. United States, 319 U. S. 41; Fiswick v. United States, 329 U. S. 211, 220-223; Annot., 87 U. S. Law. Ed. 1201n.

5

resume them. Nor does the forced performance of acts sought to be enjoined render a case moot when the consequences of the conduct may be set aside if the injunction is subsequently granted. The above examples are, of course, just illustrative.

Cases may also terminate if a necessary party drops out of the proceeding. Apart from death, such abatement occurs most frequently when a public official who is a party to an action ceases to hold office. Both with respect to death (when the action survives) and a change in office, procedures are available to substitute successor parties for those no longer available.

The substantive law of mootness, abatement, survival of actions, and substitution of parties is not within the scope of this book. This chapter will deal with the procedures to be followed when such questions arise in Supreme Court litigation and with a few problems which recur most frequently.

A. Presentation of facts with respect to mootness or abatement

The facts which give rise to problems of mootness or abatement almost always occur after the record below has been closed. The rule against referring to facts outside the record, however, does not apply to such matters. On the contrary, the Supreme Court regards it as the duty of counsel to call such facts to its attention, in order that it may not unknowingly

5 United States v. Trans-Missouri Freight Ass'n., 166 U. S. 290, 308-9; Federal Trade Commission v. Goodyear Tire & Rubber Co., 304 U. S. 257, 260; Walling v. Helmerich & Payne, 323 U. S. 37, 42-43; cf. United States v. Hamburg American Line, 239 U. S. 466, 475-8.

6 Porter v. Lee, 328 U. S. 246, 251; Dakota County v. Glidden, 113 U. S. 222, 224; Mills v. Green, 159 U. S. 651, 654; Little v. Bowers, 134 U. S. 547.

7 The subject is thoroughly explored in Robertson and Kirkham, Jurisdiction of the Supreme Court of the United States (1936), pp. 431-466.

XIV

LOSS OF JURISDICTION BY

MOOTNESS OR ABATEMENT

The Supreme Court, like any other court, may lose jurisdiction over a case because of the occurrence of facts outside the record which terminate the controversy. The Court has constitutional jurisdiction only over actual cases and controversies, between adverse interests, with respect to which the Court's judgment will be effective. If the controversy becomes academic by reason of changing circumstances, the Court's

Purisdiction ceases.

A controversy may terminate in legal contemplation for a variety of reasons. A case may be settled. An infunction proceeding may become meaningless if an act sought to be enjoined has irretrievably occurred? A controversy may end if the statute which is the basis for the action or for the conduct complained of is repealed or modifed? A criminal fudgment may become moot when a defendant-appellant fully serves his sentence and there are no legal afterefers On the other hand mere combon of unlawful activities does not render moot a sult for an in anction at it is possible for the defendant to

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