« PreviousContinue »
WORDS APPELLANT AND RE es shall be stated in a narrative form, ex-
cept when the questions and answers are INCLUDE.
necessary to a complete understanding of the Rule 10. Whenever the words appellant evidence. When there is any question made and respondent appear in these rules they over the pleadings, or as to the admissibility shall be taken to mean and include plaintiff or legal effect of any documentary evidence, and defendant in error and other parties oc
the pleadings and such documentary evidence
must be set out in full with the indorsements cupying like positions in a cause.
thereon; and in all other respects the ab
stract must set forth a copy of so much of ABSTRACTS IN LIEU OF TRANSCRIPT, the record as is necessary to be consulted in WHEN FILED AND SERVED.
the disposition of the assigned errors. Rule 11. In those cases where the appel
PRINTED TRANSCRIPTS. lant shall, under the provisions of section 2233, Rev. St. 1889, file in the court a copy Rule 14. A printed and indexed transcript of the judgment, order or decree, in lieu of a duly certified by the clerk of the trial court complete transcript, he shall deliver to the may be filed instead of a manuscript record, respondent a copy of his abstract at least and in all cases ten printed and indexed, unthirty days before the cause is set for hearing, certified copies of the entire record, filed and and shall in like time file ten copies thereof served within the time prescribed by these with the clerk of this court. If the respond- rules for serving abstracts, shall be deemed ent is not satisfied with such abstract, he shall a full compliance with said rule and disdeliver to the appellant a complete or addi- pense with the necessity of any further ab. tional abstract at least fifteen days before stracts. the cause is set for hearing, and within like time ile ten copies thereof with the clerk
BRIEFS, WHAT TO CONTAIN AND of this court. Objections to such complete
WHEN SERVED. or additional abstract shall be filed with the Rule 15. The appellant shall deliver to the clerk of this court within ten days after serv- opposing party a copy of his brief thirty ice of such abstract upon the appellant, and days before the day on which the cause is a copy of such objections shall be served up- set for hearing, and the respondent shall deon the respondent in like time. (As amend-liver a copy of his brief to the opposing ed February 26, 1895.)
party at least five days before the last-named
date, and the appellant shall deliver a copy ABSTRACTS, WHEN FILED AND of his brief in reply to the opposing party SERVED.
not later than the day preceding that on
which the cause is cet for hearing, and ten Rule 12. In all cases where a complete copies of each brief shall be filed with the transcript is brought to this court in the first clerk on or before the last-named date. instance, the appellant shall deliver to re
All briefs shall be printed and shall conspondent a copy of his abstract of the rec- tain separate and apart from the argument ord at least thirty days before the day on
or discussion of authorities, a statement, in which the cause is set for hearing, and file numerical order, of the points relied on, toten copies thereof with the clerk of this court
gether with a citation of authorities appronot later than the day preceding the one on priate under each point. And any brief failwhich the cause is set for hearing. If the ing to comply with this rule may be disrerespondent desires to file a further or addi
garded by the court. tional abstract, he shall deliver to the ap
The brief filed by appellant shall distinctly pellant a copy thereof at least five days be- and separately allege the errors committed fore the cause is set for hearing, and file ten by the inferior court, and no reference will copies thereof with the clerk of this court be permitted at the argument to the errors on the day preceding that on which the cause not thus specified, unless for good cause is to be heard.
shown the court shall otherwise direct.
In citing authorities, in support of any ABSTRACTS, WHAT THEY SHALL
proposition, it shall be the duty of the counCONTAIN.
sel to give the names of the parties to any Rule 13. The abstracts mentioned in rules case cited from any report of the adjudged 11 and 12 shall be printed in fair type, and cases, as well as the number of the volume shall be paged, and shall have a complete and the pages where the same will be found; index at the end thereof, and shall set forth and when reference is made to a passage in so much of the record as is necessary to a
any elementary work or treatise, the numfull and complete understanding of all the ber of the edition, the volume, section, paging questions presented to this court for decision. or side paging shall be set forth. Where there are no questions made over the pleadings, or over deeds or other docu- FAILURE TO COMPLY WITH RULES 11,
12, 13 AND 15. mentary evidence, it shall be sufficient to set out the substance of such pleadings or docu Rule 16. If any appellant in any civil case mentary evidence. The evidence of witness-' shall fail to comply with the rules numbered
11, 12, 13 and 15, the court, when the cause When appellants have been allowed to is called for hearing, will dismiss the appeal prosecute their appeal as poor persons, by the or writ of error; or at the option of the re- circuit court, counsel will be permitted to spondent continue the cause at the cost of file typewritten briefs and statements. In the party in default.
cases in which the transcript has been filed
thirty days before the day on which the cause COSTS, WHEN ALLOWED FOR PRINT- | is docketed, counsel for appellant shall file ING ABSTRACTS AND RECORDS. their statements, briefs and assignments of
error fifteen days before the hearing, and Rule 17. Costs will not be allowed either the Attorney-General his brief and statement party for any abstract, filed in lieu of a full five days before the hearing. transcript under section 2253, Rev. St. 1889,
When such transcript has been filed in this which fails to make a full presentation of all court fifteen days before the first day of the the record necessary to be considered in dis- term at which such case is set for hearing, posing of all the questions arising in the the appellant, or plaintiff in error, shall file
But in those cases brought to this his statement, brief and assignments of error court by a copy of the judgment, order, or five days before the first day of such term, decree instead of a full transcript, and in and the Attorney-General shall have till on which the appellant shall file in this court a
or before the first day of the term within printed copy of the entire record as and for which to file his brief and statement. an abstract, costs will be allowed for print Hereafter no brief or statement shall be ing the same.
allowed to be filed in a criminal case out of In any case in which a manuscript record time, as in this rule prescribed; nor will has been or may be filed in this court, a rea-counsel who violate this rule be heard in sonable fee for printing an abstract of the oral argument, unless in exceptional cases, record, or the entire record in lieu of an ab- for good cause shown, by motion theretofore stract, may be taxed as costs upon the writ- filed, heard and ruled on before the day set ten stipulation of both parties to that effect. for the hearing of the case. The affidavit of the printer shall be received Ordered to be in full force and effect on in every case, where costs may properly be and after September 1, 1913. taxed for printing, as prima facie evidence of the reasonableness thereof; and, if the ad
(Adopted April 28, 1913.) verse party objects thereto, such objection
TAKING RECORD FROM CLERK'S shall be filed within ten days after service of
OFFICE. notice of the amount of such charge.
Rule 20. No member of the bar shall be SERVICE OF ABSTRACTS AND BRIEFS. permitted to take a record from the clerk's
office. Rule 18. Delivery of an abstract or brief to
(Amended by the court in banc, July 15, 1911.) the attorney of record of the opposing party shall be deemed a delivery to such party un
MOTIONS FOR REHEARING. der the foregoing rules, and the evidence of such delivery must be by the written ac Rule 21. Motions for rehearing must be acknowledgment of such opposing party or his companied by a brief statement of the reaattorney, or the affidavit of the person mak- sons for a reconsideration of the cause, and ing the service, and such evidence of service must be founded on papers showing clearly must be filed in this court with the abstract that some question decisive of the case, and or brief.
duly submitted by counsel, has been over
looked by the court, or that the decision is in SERVICE OF ABSTRACT AND BRIEFS conflict with an express statute, or with a IN CRIMINAL CASES.
controlling decision to which the attention of Rule 19. The attorneys for appellants, in the court was not called through the neglect criminal cases in which transcripts have been or inadvertence of counsel; and the question filed in the office of the clerk of this court so submitted by the counsel and overlooked sixty days before the day the cause is docket by the court, or the statute with which the ed for hearing, shall, at least thirty days be- decision conflicts, or the controlling decision fore the day of hearing, file in the office of to which the attention of the court was not the clerk of the Supreme Court a printed called, as the case may be, must be distinctstatement, containing apt reference to the ly and particularly set forth in the motion, pages of the transcript, assignments of er- otherwise the motion will be disregarded. rors and brief of points and argument, and Such motion must be filed within ten days serve a copy thereof upon the Attorney-Gen. after the opinion of the court shall be deeral, and, thereupon the Attorney-General livered, and notice of the filing thereof must shall, fifteen days before the day of trial, be served on the opposite counsel. After a serve defendant or his counsel with a copy cause has been once reheard and the motion of his statement and brief.
for rehearing overruled either in division or When a criminal case shall be advanced on in banc, no further motion for rehearing or the docket the court shall designate the time motion to set aside the order overruling the for filing statements and briefs.
motion for rehearing, by the same party, will
be entertained by the court or fled by the pellant for any reason can not or does not clerk.
file a complete transcript, he shall file within
the time allowed by said section of the stat. EXTENSION OF TIME.
utes a certificate of judgment, and may thereRule 22. Hereafter in no case will exten- after file a complete transcript and abstract sion of time for filing statements, abstracts of the record, or simply an abstract of the and briefs be granted, except upon affidavit record. And neither the fact that this court sbowing satisfactory cause.
has heretofore held that the return term of
the appeal is to be determined by the date NOTICE TO ADVERSE PARTY.
of the filing of the bill of exceptions, nor the
fact that for any reason a complete trasto Rule 23. A party, in any cause, filing a mo- script could not be filed in time for the retion either to dismiss an appeal or writ of
| turn term, shall be taken as an excuse, but error, or to affirm the judgment, shall first in all such cases the appellant shall file a cernotify the adverse party or his attorney of tificate of the judgment as and when requirrecord, at least twenty-four hours before ed by said section 813, Rev. St. 1899. making the motion, by telegram, by letter,
(Adopted at October sitting, 1901.) or by written notice, and shall on filing such motion, satisfy the court that such notice Rule 29. The time allowed for oral arguhas been given.
ment and statement shall be an hour and ten Rule 24. A motion to transfer a cause un minutes for appellant or plaintiff in error, der the provisions of the constitution from or relator in original proceeding, and fifty either division to court in banc must be filed minutes for respondent or defendant in erwithin ten days after the final disposition of ror or respondent in original proceeding. the cause by the division, and notice of such
(Adopted at the January sitting, 1912.) motion shall be given as provided in rule 23.
Rule 30. All motions, briefs, letters or RETURN OF ORIGINAL WRITS.
communications in anywise relating to a Rule 25. Original writs or other process is
matter pending in this court must be adsued by either division of the court, or by
dressed to its clerk, who will lay them beany judge in vacation, may be made return
fore the court in due course. Hereafter any able to and disposed of by such division, or
letter or communication relating directly or the court in banc as such division or judge
indirectly to any pending matter, addressed in vacation may order.
personally or officially to any judge of this
court, will be filed with the case and be open ASSIGNMENT OF MOTIONS IN CIVIL to the inspection of the public and opposing CAUSES.
(Adopted July 13, 1912.) Rule 26. All motions and matters in civil causes which have not been assigned by the Rule 31. All rules not included in the forecourt in banc to a division for final deter- going enumeration are hereby rescinded. mination, upon the record, shall be presented
Rule 32. Hereafter an appellant, filing here to, heard and determined by the court in banc. All matters in civil causes which
a certified copy of the order granting an aphave been assigned to a division shall be pre
peal, need not abstract the record entries sented to and heard and determined by such
showing the steps taken below to perfect division.
such appeal. If the abstract state the ap
peal was duly taken, then absent a record ASSIGNMENT OF CRIMINAL CAUSES.
showing to the contrary, by respondent, it
will be presumed the proper steps were takRule 27. All criminal causes, and matters en at the proper time and term. pertaining thereto, shall be heard and deter
Hereafter no appellant need abstract recmined by Division Number Two.
ord entries evidencing his leave to file, or WHEN APPEAL IS RETURNABLE-CER
filing of, a bill of exceptions. It shall be
sufficient if his abstract state the bill of exTIFICATE OF JUDGMENT
ceptions was duly filed. The burden is then TRANSCRIPT.
on respondent to produce here the record Rule 28. In all cases where appeals shall showing the contrary to be the fact, if he be taken or writs of error sued out to this make the point. court after January 1, 1902, the appellant Anything in any rule to the contrary is shall file with the clerk of this court a full hereby abrogated. transcript or in lieu thereof a certificate of
(Adopted December 10, 1912.) judgment as provided by section 813, Rev. St. 1899, within the time by said section pro
Rule 33. No original remedial writ, except vided, and the date of the allowance of the habeas corpus will be issued by this court in appeal and not the time of filing the bill of any case wherein adequate relief can be afexceptions after the appeal is granted, shall forded by an appeal or writ of error, or by determine the term of this court to which application for such writ to a court having in such appeal is returnable, and when the ap-that behalf concurrent jurisdiction.
Rule 34. No oral arguments will be grant- such application; and the applicant shall, in ed by this court on applications for original the petition of not exceeding five pages, conremedial writs; and before such writs shall | cisely set out the issue presented to the Court issue the applicant therefor shall give not of Appeals and show wherein and in what less than five days' notice thereof to the ad- manner the alleged conflicting ruling arose, verse party, or his attorney. Such notice and shall designate the precise place in our shall be in writing, accompanied by a copy of official reports where the controlling decision the application for the writ and the sugges- will be found. Said petition shall be accomtions in support of same. The adverse party panied by a true copy of the opinion of the may file in this court suggestions in opposi. Court of Appeals complained of, a copy of tion to the issuance of the writ. Whenever the motion for rehearing or to transfer the the required notice would, in the judgment cause to this court, a copy of the ruling of of the court, defeat the purpose of the writ, the Court of Appeals on said motion, and sugit may be dispensed with. On final hearing gestions in support of the petition not to exprinted abstracts and briefs shall be filed in ceed six printed or typewritten pages. all respects as required in appeals and writs The notice to the party to be adversely afof error in other civil cases.
fected shall be printed or typewritten, acRule. 35. No writ of certiorari shall be companied by a true copy of the petition and granted to quash the judgment of a Court of all exhibits and suggestions in regard there Appeals, on the ground that such court has to. The party to be adversely affected may failed or refused to follow the last control- file on or before the day preceding that fixed ling decision of the Supreme Court, unless by the notice suggestions of not more than the applicant for such writ shall give all par- five printed or typewritten pages, stating the ties to be adversely affected, or their attor- reasons why such writ should not issue. neys of record, at least five days' notice of (Rules 33, 34, and 35 adopted April 2, 1914.)
COURT OF APPEALS OF MISSOURI,
Rules Governing Practice in the Kansas City Court of Appeals
It is ordered by the court that the following from the clerk's office to the library room of
rules of practice in the Kansas City court the court, and to no other place, and then of appeals shall be in force and observed they must leave a written receipt therefor, froni and after the first day of April, 1885: but shall not be retained from the clerk's of
fice over night. Rule 1.-PRESIDING JUDGE. The presiding judge shall superintend all matters of or
Rule 5.-DIMINUTION OF RECORDS. No der in the court room and entertain and dis- suggestion of diminution of record in civil pose of all oral motions.
cases will be entertained by the court after Rule 2.-All motions in a cause shall be in joinder in error, except by consent of parties. writing, signed by the counsel and filed of rec Rule 6. — CERTIORARI TO PERFECT ord, and no motion shall be argued orally, un RECORD. Whenever a writ of certiorari to less the court so directs.
perfect record is applied for, the motion shall Rule 3.-HEARING OF CAUSES. No cause
state the defect in the transcript it is deshall be heard before it is reached in its regu- fidavit. At least twenty-four hours' notice
signed to supply, and shall be verified by aflar order on the docket, unless circumstances exist such as entitle it to precedence; and
shall be given to the adverse party or bis atany motion to advance a cause on the docket
torney, previous to the making of the applica
tion. shall be accompanied by affidavits, showing particularly the facts on which such motion Rule 7.-NOTICES OF WRITS OF ERROR. is based. When a cause is advanced, the rec All notices of writs of error, with the acceptord, as well as the briefs, shall be printed, un ance, waiver or return of service indorsed less the court shall otherwise order. This thereon, shall be filed with the clerk of this rule has no application to causes whereof this court, and by him attached to the transcript court has original jurisdiction.
in the cause, and shall be the only evidence Rule 4. – TAKING RECORDS FROM that such notice has been given. CLERK'S OFFICE. Counsel in a cause are Rule 8.-REVIEW OF INSTRUCTIONS ON permitted to take the records of such cause. GENERAL STATEMENT OF EVIDENCE.
In actions at law it shall not be necessary, | pleading as the only one of that order in the for the purpose of reviewing in this court the cause, and will refrain from setting out any action of any circuit court, or any other court abandoned pleadings as part of the record, having by statute jurisdiction of civil cases, unless it be made such by a bill of exceptions; in giving or refusing instructions, that the and no clerk shall insert in the transcript any whole of the testimony given or excluded at matter touching the organization of the court, the trial in the court of first instance should or any mention of any continuance, motion or be embodied in the bill of exceptions; but it affidavit in the cause, unless the same be speshall be sufficient, for the purpose of such re- cially called for by bill of exceptions. view, that the bill of exceptions should state
Rule 13.-PRESUMPTION THAT BILL OF that "evidence tending to prove" a particular
EXCEPTIONS CONTAINS ALL THE EVI. fact or issue was given, and that an excep
DENCE. The only purpose of a statement in tion was saved to the giving or refusal of the
a bill of exceptions, that it sets out all the evinstruction founded on it.
idence in the cause, being that this court may Rule 9.-BILL OF EXCEPTIONS WHEN have before it the same matter which was deGENERAL STATEMENT OF EVIDENCE IS cided by the court of first instance, it shall be ALLOWED BY TRIAL COURT. If the oppo- presumed, as matter of fact, in all bills of exsite party shall contend that there was no evi-ceptions, that they contain all the evidence dence tending to prove a fact or issue, and applicable to any particular ruling to which the court of first instance shall be of opinion exception is saved. that there was such evidence, it shall be the
Rule 14.-BILL OF EXCEPTIONS IN EQduty of the court to allow the bill of excep
UITY OASES. In all cases of equitable juristions in the form stated in the last preceding
diction the whole of the evidence shall be emrule, and then the other party shall be at lib
bodied in the bill of exceptions, unless the erty to set out in a bill of exceptions, to be
| parties shall agree upon an abbreviated stateprepared by him, the whole of the testimony
ment thereof. supposed by him to be applicable to such fact or issue, and to except to the opinion of the
Rule 15.-ABSTRACT AND BRIEFS TO court that the same tends to prove such fact
BE FILED AND SERVED. In all cases the or issue.
appellant or plaintiff in error shall file with
the clerk of this court, on or before the day Rule 10.-EVIDENCE-BILL OF EXCEPTIONS TO BE ALLOWED, WHEN. If the
next preceding the day on which the cause is
docketed for hearing, five copies of a printed court of first instance shall be of opinion that
| abstract or abridgment of the record in said there is no evidence tending to prove a particular issue of fact, the party alleging that
| cause, setting forth so much thereof as is nec
essary to a full understanding of all the questhere is such evidence shall tender a bill of exceptions detailing all the evidence given
tions presented to this court for decision, to
| gether with a brief containing in numerical and supposed to tend to the proof of such
order, the points or legal propositions relied fact or issue, and except to the opinion of the
on, with citation of such authorities as councourt that it does not so tend, which bill of exceptions shall be allowed by the court by
sel may desire to present in support thereof.
The appellant or plaintiff in error shall also which the cause is tried.
deliver a copy of said abstract, brief, points Rule 11.-EXCEPTIONS-QUESTIONS TO and authorities to the attorney for respondBE EMBODIED IN BILL. When an excep ent, or defendant in error, at least twenty tion is saved to the admission or exclusion of days before the day on which the cause is any evidence, or the allowance or disallow-docketed for hearing, and the counsel for reance of any question, the question itself shall spondent, or defendant in error, shall, at least be stated in the bill of exceptions, or the sub- eight days before the day the cause is docketstance of the evidence shall be fully stated. ed for hearing, deliver to the counsel for ap
Rule 12.-DUTY OF CIRCUIT COURT pellant, or plaintiff in error, one copy of his OLERKS IN MAKING TRANSCRIPTS. The statement, brief, points and authorities cited, clerks of the several circuit courts and other and such further abstract of the records as courts of first instance, before which a trial he may deem necessary, and shall, on or beof any cause is had, in which an appeal is fore the day next preceding the day on which taken or writ of error is sued out, shall not said cause is docketed for hearing, file with (unless an exception is saved to the regularity | the clerk of this court five copies of the of the process or its execution, or to the ac- same; and the counsel for appellant, or quiring by the court of jurisdiction in the plaintiff in error, may, if he desires, within cause), in making out transcripts of the rec- five days after the service on him of the reord for this court, set out the original or any | spondent's, or defendant in error's, abstract subsequent writ, or the return thereof, but in and brief of aforesaid, file and serve a reply lieu thereof shall say (e. g.): "Summons is thereto in the manner aforesaid; and the sued on the day of — , 188, execut- evidence of the service of such abstracts, ed on the day of — 188%;" and if briefs, points and authorities, as above reany pleading be amended the clerk in making quired, shall be filed by each party at the out transcripts will treat the last amended time of filing said copies with the clerk.