It is (was) employed in the Supreme Court only as an auxiliary process to enable the court to obtain further information in respect to some matter already before it for adjudication. Ib. 260. The certiorari mentioned in sec. 6 of the Act of Mar. 3, 1891, is the equivalent to an appeal or writ of error, and is issued at the discretion of the Supreme Court. The auxiliary writ of certiorari to perfect the record does not operate to bring up for review a case, or add any force to an appeal. Huguley Mfg. Co. v. Galeton Mills, 184 U. S. 290–296, 46 L. ed. 549, Oct. T., 1901. RULE XV-Death of a Party other made party. The party may require revival of the suit or its dismissal. 1. Whenever, pending a writ of error or appeal in this court, either party shall die, the proper representatives in the personalty or realty of the deceased party, according to the nature of the case, may voluntarily In suits abated by death, come in and be admitted parties to the legal representative_may suit, and thereupon the case shall be heard and determined as in other cases; and if such representatives shall not voluntarily become parties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order that unless such representatives shall become parties within the first ten days of the ensuing term, the party moving for such order, if defendant in error or appellee, shall be entitled to have the writ of error or appeal dismissed; and if the party so moving shall be plaintiff in error or appellant he shall be entitled to open the record, and on hearing have the judgment or decree reversed, if it be erroneous: Provided, however, That a copy of every such order shall be printed in some newspaper of general circulation within the State, Territory, or District from which the case is brought, for three successive weeks, at least sixty days before the beginning of the term of the Supreme Court then next ensuing. either party, after sug gestion of death, case abates by the tenth day 2. When the death of a party is suggested, and the representatives of the deceased do not appear Without action by by the tenth day of the second term next succeeding the suggestion, and no measures are taken by the opposite party within pel their appearance, the case shall abate. of next term. that time to com low, after judgment or decree, and no representative of deceased resides in the same State. 3. When either party to a suit in a court of the United States shall desire to prosecute a writ of error or appeal to the Supreme Court of the United States, from any final judgment or decree, rendered in such court, and at the time of Proceedings, when suit suing out such writ of error or appeal the has abated in court be other party to the suit shall be dead and have no proper representative within the jurisdiction of the court which rendered such final judgment or decree, so that the suit cannot be revived in that court, but shall have a proper representative in some State or Territory of the United States, the party desiring such writ of error or appeal may procure the same, and may have proceedings on such judgment or decree superseded or stayed in the same manner as is now allowed by law in other cases, and shall thereupon proceed with such writ of error or appeal as in other cases. And within thirty days after the commencement of the term to which such writ of error or appeal is returnable, the plaintiff in error or appellant shall make a suggestion to the court, supported by affidavit, that the said party was dead when the writ of error or appeal was taken or sued out, and had no proper representative within the jurisdiction of the court which rendered said judgment or decree, so that the suit could not be revived in that court, and that said party had a proper representative in some State or Territory of the United States, and stating therein the name and character of such representative, and the State or Territory in which such representative resides; and, upon such suggestion, he may, on motion, obtain an order that, unless such representative shall make himself a party within the first ten days of the ensuing term of the court, the plaintiff in error or appellant shall be entitled to open the record, and, on hearing, have the judgment or decree reversed, if the same be erroneous: Provided, however, That a proper citation reciting the substance of such order shall be served upon such representative, either personally or by being left at his residence, at least sixty days before the beginning of the term of the Supreme Court then next ensuing: And provided, also, That in every such case if the representative of the deceased party does not appear by the tenth day of the term next succeeding said suggestion, and the measures above provided to compel the appearance of such representative have not been taken within time as above required, by the opposite party, the case shall abate: And provided, also, That the said representative may at any time before or after said suggestion come in and be made a party to the suit, and thereupon the case shall proceed, and be heard and determined as in other cases. Clause 1 adopted as Rule 31 at the February Term, 1831, 6 Wheat. v, vi; published as Rule 28, 1 Pet. ix. Became Clause 1 of Rule 15 in the revision of 1859, 21 How. x; amended Dec. 11, 1879, 100 U. S. ix; revised Jan. 7, 1884, 108 U. S. 581. Clause 2 adopted as Rule 61 at December Term, 1851, 13 How. v. In the revision of 1858 became Clause 2 of Rule 15, 21 How. xi; 108 U. S. 582. Clause 3 promulgated Jan. 12, 1875, 20 Wall. xv; published 108 U. S. 582, amended Oct. Term, 1911. Promulgated December 22, 1911. 222 U. S. Decisions Where after the writ is issued, one of three parties, plaintiffs in a writ of error, dies, it is not necessary to make his heirs and representatives parties to the writ as the cause of action survives to the other plaintiffs in error. McKinney v. Carroll, 12 Pet. 66-71, 9 L. ed. 1004, Jan. T., 1838. When a party dies while a cause is under advisement, judgment may be entered nunc pro tunc as of the first day of the term. Clay v. Smith, 3 Pet. 411-412, 7 L. ed. 724, Jan. T., 1830. Where one of two co-defendants dies after the commencement of the term the judgment may be entered against both defendants on a day prior, nunc pro tunc, but if death occurs before the commencement, then upon suggestion of the death being entered of record the cause of action surviving, the judgment may be entered against the surviving defendant. McNutt v. Bland, 2 How. 9-28, 11 L. ed. 166, Jan. T., 1844. Where an opinion of the court had been delivered in favor of the appellants and objection was made to the entry of a decree against the defendant, who had died since the commencement of the term, the court ordered the decree to be entered as of the first day of the term. Bank v. Weisiger, 2 Pet. 481, 7 L. ed. 492, Jan. T., 1829. Where one of the parties has died since the submission of the cause a decree of reversal for further proceedings will be made nunc pro tunc as of the date the cause was submitted. Louisville & Nashville R. Co. v. Behlmer, 175 U. S. 648-676, 44 L. ed. 320, Oct. T., 1899. Where the death of a party was suggested at the December Term, 1851, and his legal representatives did not appear by Dec. 10, 1854, the cause was held to have abated under Rule 61, now Rule 15. Barribeau v. Brant, 17 How. 43-46, 15 L. ed. 35, Dec. T., 1854. The only persons who can be permitted to appear in his stead upon the death of a party, are those who succeed to the interest he then had. An assignee under title acquired prior to the writ of error or appeal cannot thus appear. Ib. 46. Where an appellee dies after an appeal is taken, the administrator appointed in the jurisdiction of the decedent's domicil is properly admitted as the appellee to defend the appeal, though appointed in a State other than that wherein the decree was obtained. Noonan v. Bradley, 12 Wall. 121–128, 20 L. ed. 281, Dec. T., 1870. Where the jurisdiction of the court is acquired by the diverse citizenship of the original parties, it is not divested by the death of a party and the substitution of his administrator who lacks the necessary diverse citizenship. Clarke v. Mathewson, 12 Pet. 164–171, 9 L. ed. 1044, Jan. T., 1838. One who has conducted a cause in the name of another with his consent may, after his death, use the names of such other's legal representatives to prosecute an appeal or writ of error. Kellogg v. Forsyth, 24 How. 186-187, 16 L. ed. 655, Dec. T., 1860. Where the defendant pleaded that the plaintiff had assigned the cause of action before suit, upon death of the plaintiff after judgment and before writ of error sued out, the writ of error taken in the name of such deceased plaintiff, for the use of the assignee of the cause of action as the complaint had been amended to allege, Held, to be sufficiently regular to defeat a motion to dismiss. Amadeo v. Northern Assur. Co., 201 U. S. 194-201, 50 L. ed. 726, Oct. T., 1905. Where pending a writ of error to the Supreme Court, subsequently dismissed, the defendant in error dies, if the plaintiff in error takes out a new writ in the name of the deceased, the practice is irregular. Application should be made to the court below to revive the suit in the name of the deceased's legal representatives, and then the writ of error can be regularly issued. If the court refuses this application, the writ may be issued in the name of the representatives of the deceased and citation served on them. McClaine v. Boone, 6 Wall. 244-245, 18 L. ed. 836, Dec. T., 1867. In real actions upon death of the ancestor without having appeared where new parties are made by order of the court as representatives of a deceased party, and judgment is rendered against them though by default, they are entitled to sue out a writ of error. Macker v. Thomas, 7 Wheat. 530-532, 5 L. ed. 515, Feb. T., 1822. Before he shall be permitted to prosecute (or defend) the executor must show himself to be executor unless the fact be admitted by the parties, and he may be required to produce his letters testamentary; but if the order for his admission as a party be made, it is too late to contest the fact of his being an executor. Wilson v. Codman's Exector, 3 Cranch, 193-207, 2 L. ed. 413, Feb. T., 1805. If the court unguardedly permits a person to prosecute who has not given satisfactory evidence of his right to do so, it possesses and will employ means of preventing any mischief from its inadvertence. Ib.207. Where the judgment in the court below in an action for personal injuries is against the plaintiff, who dies after the writ of error is sued out, the writ will be dismissed. Gerling v. B. & O. R. R. Co., 150 U. S. 673-703, 38 L. ed. 322, Oct. T., 1893. In no case does a writ of error in personal actions abate by the death of the defendant in error. Green v. Watkins, 6 Wheat. 260-262, 5 L. ed. 256, Feb. T., 1821. Proceedings in admiralty are in rem, therefore the death of one of the parties to a decree does not abate the suit. Penhallow v. Doane, 3 Dall. 54-86, 1 L. ed. 521, Feb. T., 1795. Suggestion of the death of plaintiff in error made by his counsel at December Term, 1846, and leave given to make his representatives parties, which not being done, the writ of error held to be abated and the cause remanded to "be proceeded in according to law and justice." Phillips v. Preston, 11 How. 294, 13 L. ed. 702, Dec. T., 1850. In a cause of magnitude the court will, in its discretion, grant a continuance on account of the death of counsel. Hunter v. Fairfax, 3 Dall. 305-306, 1 L. ed. 613, Aug. T., 1796. RULE XVI-NO Appearance of Plaintiff in Error or Appellant called no appearance or Where no counsel appears and no brief has been filed for the plaintiff in error or appellant, when Case dismissed, if when the case is called for trial, the defendant brief for plaintiff. in error or appellee may have the plaintiff in error or appellant called and the writ of error or appeal dismissed, or may open the record and pray for an affirmance. At the February Term, 1806, Mr. Chief Justice Marshall stated the practice as embodied in this rule, but owing to the omission of the clerk to enter this with the |