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against the title, right, privilege, or immunity especially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority." 6

The issue of this writ of certiorari is within the discretion of the Supreme Court. It cannot issue in a case of which the Supreme Court has jurisdiction by writ of error. It can only issue to review a final judgment.

§ 689e. Practice upon applications to the Supreme Court for certiorari. The Supreme Court Rules provide: "3. Where an application is submitted to this Court for a writ of certiorari to review a decision of a Circuit Court of Appeals or any other court, it shall be necessary for the petitioner to furnish as an exhibit to the petition a certified copy of the entire transcript of record of the case, including the proceedings in the court to which the writ of certiorari is asked to be directed.1 The petition shall contain only a summary and short statement of the matter involved and the general reasons relied on for the allowance of the writ. A failure to comply with this provision will

a clause in the treaty. Aetna Life Ins. Co. v. Tremblay, 223 U. S. 185, 56 L. ed. 398. Whether a State officer is subject to removal under the State Civil Service Laws does not present a Federal question; and upon an application for the writ of mandamus to compel restoration to such, the U. S. Supreme Court refused to consider the rights which the petitioner had in a fund, of which he may not be deprived without due process of law. Preston v. City of Chicago, 226 U. S. 447, 57 L. ed.

6 Ch. 448, § 239 St. at L. 726, Comp. St. § 1214, amending Jud. Code § 237, See infra, §§ 692-692c. 7 Ireland v. Woods, 246 U. S. 323, 38 Sup. Ct. 319, 62 L. ed. 745.

8 New Orleans & N. E. R. Co. v. Scarlet, 249 U. S. 528, 39 Sup. Ct. 369, 63 L. ed. 752.

9 Bruce v. Tobin, 245 U. S. 18, 38 Sup. Ct. 245, 62 L. ed. 123, hold

ing that a judgment directing a new trial cannot thus be reviewed.

§ 689e-1 In one or two instances a petition has been submitted and considered, although the petitioner has not furnished the Justices with copies of the record. If this is desired, the reason for the omission should be stated to the court at the time of the submission of the petition. Farrell v. O'Brien, 199 U. S. 89, 101, 56 L. ed. 101, 107, and other cases cited infra.

2 The petition should be carefully prepared, contain appropriate references to the record and present with studied accuracy, brevity and clearness, whatever is essential to ready and adequate understanding of the points requiring the attention of the court, Furness, Withy & Co. v. Yang-Tsze Insurance Ass'n, 242 U. S. 430. It will rarely if ever after an affirmance below thus review a refusal to submit a question to the

be deemed a sufficient reason for denying the petition. Thirty printed copies of such petition and of any brief deemed necessary shall be filed. Notice of the date of submission of the petition, together with a copy of the petition and brief, if any, in support of the same shall be served on the counsel for the respondent at least two weeks before such date in all cases except where the counsel to be notified resides west of the Rocky Mountains, in which cases the time shall be at least three weeks. The brief for the respondent, if any, shall be filed at least three days before the date fixed for the submission of the petition. Oral argument will not be permitted on such petitions, but they may be submitted in open court by counsel or by the clerk on request of counsel, and no petition will be received within three days next before the day fixed upon for the adjournment of the Court for the term."4 "4. In any case where the time for presenting a petition for certiorari is expressly limited by statute, and where the court has adjourned for the term, the petition may be presented during such adjournment and within the period prescribed, by filing it, together with the printed record and briefs, in the office of the Clerk, and such filing shall have the same effect as a presentation in open court." 5

jury, Houston Oil Co. v. Goodrich, 245 U. S. 440, 38 Sup. Ct. 140, 62 L. ed. 385; or reverse an order of the Circuit Court of Appeals which reverses an order of the District Court granting a preliminary injunction, Meccano, Ltd. V. John Wanamaker, 253 U. S. 136, 141; or pass upon the controverted questions of fact arising upon the application; Union Pac. R. R. Co. v. Weld County, 247 U. S. 288; Spiller v. Atchison, T. & S. F. Ry. Co., 253 U. S. 117, 121 (an order granting a new trial).

3 Where the real situation is not therein set forth a duty rests upon the opposing counsel to reveal this in a reply. Ibid. It seems that, if a certified copy of the record

is already on file, a new one need not then be presented to the court. Farrell v. O'Brien, 199 U. S. 89, 101, 56 L. ed. 101, 107.

4 S. C. Rule 37, Sec. 3, as amended Nov. 4. 1918, 248 U. S. 529.

5 S. C. Rule 37, Sec. 4, as amended in 241 U. S. 635. This gives the clerk authority to present the petitions at the request of counsel. Such request should be in writing. Liberty Oil Co. v. Gordon Nat. Bank, U. S. S. C., Nov. 7, 1921. The clerk of the Supreme Court has prepared the following:

"Instructions as to applications for writs of certiorari under Act of March 3, 1891 [210 U. S. 503].

"The following are the requirements on applications for writs of

Application for the writ must be made within three months after the entry of the judgment, decree or order of which complaint is made, except in the case of a judgment or decree of the Supreme Court of the Philippine Islands when application may be made within six months.6

"An application for a writ of certiorari will be deemed in time when the petition therefor, accompanied by the printed. record and brief, is filed within the period prescribed by law: Provided this is followed by submitting the petition in open Court on some motion day not later than the first one which

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fore the petition will be docketed there must be furnished this office: 1. An original petition with written signature of counsel. 2. A certified copy of the transcript of the record, including all proceedings in the Circuit Court of Appeals. 3. An appearance of counsel for petitioner, signed by a member of the bar of this court. 4. A deposit of twenty-five dollars ($25) on account of costs. Before submission of the petition there must be furnished: 1. Proof of service of notice of date fixed for submission and of copies of petition and brief upon counsel for the respondent. About two weeks' notice should be given. 2. Twenty-five (25) printed copies of the petition. 3. Twenty-five (25) printed copies of brief in support of petition, if any such brief is to be filed. 4. At least nine (9) uncertified copies of record, which must contain all the proceedings in the Circuit Court of Appeals. These copies may be made up by using copies of the record as printed for the Circuit Court of Appeals and adding thereto printed copies of the proceedings in that court. If a

sufficient number of records thus made up can not be obtained, making it necessary to reprint the record for use on the hearing of the petition, fifty (50) copies must be printed under my supervision, in order that, should the petition be granted, there may be a sufficient number for use on the final hearing. Monday being motion day, some Monday must be fixed upon for the submission of the petition. No oral argument is permitted on such petitions, but they must be called up and submitted in open court by counsel for petitioner, or by some attorney in his behalf. If a respondent desires to oppose a petition, twenty-five (25) copies of a brief for such respondent must be filed. These briefs must bear the name of a member of the bar of this court, who should also enter an appearance for the respondent. It is not necessary, however, for such counsel to be present in court when the petition is submitted. All papers in the case must be filed not later than the Saturday preceding the Monday fixed for the submission of the petition."

6 Act of Sept. 6, 1916, 39 St. at L. 727, Comp. St. § 1228a; infra, § 698.

follows a period of four weeks after such filing. Notice of the date of submission and copies of the petition and brief must be served as required by Section 3 of this Rule."7

In a doubtful case it is the safer practice to ask for both a writ of error or appeal and a writ of certiorari in separate applications; whereupon the Supreme Court may grant the proper remedy whichever it may be.8

Ordinarily, no errors will be considered to which no reference was made in the petition for the writ.9 The errors assigned by a party who took a cross-appeal to the Circuit Court of Appeals, but who filed no petition for the certiorari, will not be considered.10 The effect of the writ is ordinarily to suspend all proceedings by the Circuit Court of Appeals and by the trial court in obedience to its mandate; and it has been said that it does not authorize the court of first instance, before a decision of the Supreme Court, to set aside orders previously made in obedience to the mandate before the certiorari was issued.11 If a certified copy of the record is

7S. C. Rule 37, Sec. 4, amended March 26, 1916, 243 U. S. 623.

8 Central Trust Co. v. Chicago Auditorium, 240 U. S. 581; Union Pac. R. Co. v. Board of Com'rs, 247 U. S. 282, 38 Sup. Ct. 510, 62 L. ed. 1110; United Drug Co. v. Theodore Rectanus Co., 248 U. S. 90, 39 Sup. Ct. 48, 63 L. ed. 141; Spiller v. Atchison, T. & S. F. Ry. Co., 253 U. S. 117.

9 Alice State Bank v. Houston Pasture Co., 247 U. S. 240, 38 Sup. Ct. 496, 62 L. ed. 1096.

10 Hubbard v. Tod, 171 U. S. 474, 43 L. ed. 246; Montana Min. Co. v. St. Louis Min. & Mill Co, 186 U. S. 24, 46 L. ed. 1039.

11 Louisville N. A. & C. Ry. Co. v. Louisville Tr. Co., 78 Fed. 659. Pending the application of a certiorari execution on the judgment will usually be stayed by the court below when a supersedeas was granted in the proceedings for re

view by the Circuit Court of Appeals. Title Guaranty & Surety Co. v. U. S., 222 U. S. 401, 56 L. ed. 248; Boston & M. R. Co. v. Gokey, 150 Fed. 686; Orth v. Steger, 258 Fed. 625 (where the stays were granted by the District Court). In the latter case Mayer, J., quoted with approval the statement to this effect by the author now contained in § 427b. See also Title Guaranty & Surety Co. v. U. S., 222 U. S. 401, 56 L. ed. 248. Dancel v. Goodyear Shoe Machinery Co., S. D. N. Y., March 31, 1906 (in which the author was counsel). James H. McKenney, the former clerk of the Supreme Court, informed the author that the application for a stay should be made to the Circuit Court of Appeals. In the Second Circuit after the mandate had been issued it was held that the application should be addressed to the District Court.

already on file it may be treated as a return to the writ,12 and may be supplemented by a certified copy of the subsequent proceedings in the court below.13 Where, upon a petition for the writ of certiorari, a rule to show cause is entered, a return made to the rule and full argument had, the court, if there is no dispute as to the facts, may, and usually will, order the return to stand as the return to the writ and decide the case at once.14 A transcript certified upon an appeal, which is dismissed, may be treated as a return to the writ.15 Upon a certiorari to review an order vacating an injunction, the Supreme Court may dispose of the whole case.1 16 The writ may issue after the mandate of the Circuit Court of Appeals has been sent to the court of first instance.17 In this, and in other cases, the mandate of the Supreme Court is ordinarily addressed directly to the court of first instance, such as the District Court, or Supreme Court of the District of Columbia, as the case may be.18

§ 689f. Certification of questions for instruction. "In any case within its appellate jurisdiction as defined in section one hundred and twenty-eight, the circuit court of appeals at any time may certify to the Supreme Court of the United.

Oceanic Steam Navigation Co. v. Watkins, C. C. A., 188 Fed. 909. C. C. A., 2nd Ct. Rule 22, as amended Dec., 1921. "If application for certiorari from the Supreme Court be made, application to stay the mandate pending such certiorari shall be made only to this court, except in vacation, when such application for stay of mandate may be made to any judge of this court. During recesses any judge of this court is authorized to grant an order to show cause (with stay) why the issuance of mandate should not be withheld, making, however, such order to show cause returnable at the next motion day of this court.'

12 Farrell v. O'Brien, 199 U. S. 89, 101, 50 L. ed. 101, 107; Union Pac. R. R. Co. v. Weld County, 247 U. S. 282; United Drug Co.

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14 Am. Sugar Ref. Co. v. New Orleans, 181 U. S. 277, 283, 45 L. ed. 859, 862.

15 Farrell v. O'Brien, 199 U. S. 89, 101, 50 L. ed. 101, 107; United Drug Co. v. Theodore Rectanus Co., 248 U. S. 90, 39 Sup. Ct. 48, 63 L. ed. 141.

16 Harriman v. Northern Securities Co., 197 U. S. 244, 49 L. ed. 739.

17 The Conqueror, 166 U. S. 110, 41 L. ed. 937.

18 The Conqueror, 166 U. S. 110, 41 L. ed. 937, infra, § 712.

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