The provision of sec. 16 of the act to regulate commerce as amended by the Act of Mar. 2, 1889 (25 Stat. L. 855), that appeals from the Circuit Courts should not operate to stay the Circuit (District) Court's order do not prevent an appeal from a decree of the Circuit Court of Appeals, from operating as a supersedeas upon its allowance, with approval of security within the prescribed time. Louisville & N. R. Co. v. Behlmer, 169 U. S. 644–647, 42 L. ed. 890, Oct. T., 1897.

RULE XXX-Rehearing

A petition for rehearing after judgment can be presented only at the term at which judgment is Petitions for rehearing entered, unless by special leave granted

to be printed, sup

ported by certificate and presented at term judgment rendered.

during the term; and must be printed and briefly and distinctly state its grounds, and be supported by certificate of counsel; and will not be granted, or permitted to be argued, unless a justice who concurred in the judgment desires it, and a majority of the court so determines.

Promulgated Jan. 7, 1884, 108 U. S. 591; promulgated December 22, 1911, 222 U. S.

Decisions

After a mandate no rehearing will be granted, and on a subsequent appeal nothing is brought up but the proceedings subsequent to the mandate. Sibbald v. United States, 12 Pet. 488–492, 9 L. ed. 1169, Jan. T., 1838.

Except in cases of fraud rehearings are never granted when the final decree has been entered and the mandate sent down, unless the application is made at the same term.

Appellate courts have no power to review their own decision. Noonan v. Bradley, 12 Wall. 121–129, 20 L. ed. 281, Dec. T., 1870.

Cases cited where the rule has been enforced. Bushnell v. Crooke M. & S. Co., 150 U. S. 82, 37 L. ed. 1007, Oct. T., 1893.

After the end of the term the court may do no more than correct any clerical errors that may be found in the record. It has no power to call back parties then discharged. Brooks v. Railroad Co., 102 U. S. 107, 26 L. ed. 92, Oct. T., 1880.

Where in the printing of the record there was by accident omitted the return to the citation by which it appeared that the citation was never served, a decree rendered at one term in a cause heard, without appearance of appellee on motion at the next term to set aside and

annul the decree, was held to be within the power of the court to reach, which it did by declaring its decree rendered null and void and revoking its mandate theretofore sent to the court below. The decree and mandate are set out in the cause. Ex parte Anderson Crenshaw, 15 Pet. 119-124, 10 L. ed. 684, Jan. T., 1841.

Where a cause was dismissed because the record contained no evidence of the jurisdiction of the trial court, but the fact was overlooked that the suit was ancillary to an ejectment suit in the same court below on the law side the decree of dismissal was set aside and the cause reinstated. Johnson v. Christian, 125 U. S. 642, 31 L. ed. 820.

Where a cause has been dismissed upon a mistaken assumption of fact, the judgment of dismissal will be set aside and an application for rehearing will be granted. Security Mut. Life Ins. Co. v. Prewitt, 202 U. S. 246-248, 50 L. ed. 1014.

No rehearing will be granted unless some member of the court who concurred in the judgment expresses a desire for it, and not then unless the proposition receives the support of a majority of the court. Ambler v. Whipple, 23 Wall. 278–280, 23 L. ed. 127, Oct. T., 1874.

No reargument will be granted unless a member of the court who concurred in the judgment desires it, and when that is the case, the court of its own accord will apprise counsel of its wishes and designate the points on which it desires to hear them. Brown v. Aspden, 14 How. 25-27, 14 L. ed. 312, Dec. T., 1852.

Early practice of Supreme Court compared with practice of the English Chancery Courts. Ib.

That the decree is affirmed by a divided court is no reason for ordering a re-argument before a full bench. Ib.

Where the court does not of its own motion order a rehearing it will be proper for counsel to submit without argument a short written or printed petition, or suggestion of the important points, and upon such submission if any judge who concurred in the decision thinks proper to move for a rehearing the motion will be considered. Public Schools v. Walker, 9 Wall. 603–604, 19 L. ed. 650, Dec. T., 1869.

A motion for a rehearing is one addressed to the discretion of the court. Necessary jurisdictional allegations cannot properly be introduced for the first time on a motion for a rehearing. Steines v. Franklin County, 14 Wall. 15-21, 20 L. ed. 848, Dec. T., 1871.

Decisions of State courts granting or refusing a motion for a rehearing in an equity suit are not re-examinable in the Supreme Court. Ib. 21.

An application to consider new evidence in a subsequent suit upon a different cause of action the result of which consideration would be to make a finding in the second suit different from the former finding is in effect to seek a rehearing of one cause in another suit. Such practice is wholly inadmissible under the rule of res adjudicata. Southern Pacific R. Co. v. United States, 168 U. S. 1–65, 42 L. ed. 382.

RULE XXXI-Form of Printed Records and Briefs

Records and briefs, form

of and size to make

an octavo
octavo volume, on
unglazed paper, of pica
or larger type.

All records, arguments, and briefs, printed for the use of the court, must be in such form and size that they can be conveniently bound together, so as to make an ordinary octavo volume; and, as well as all quotations contained therein, and the covers thereof, must be printed in clear type (never smaller than small pica) and on unglazed paper.

Promulgated Dec. 19, 1879, 100 U. S. ix; published in 108 U. S. 591; amended October Term, 1899. Amendment promulgated May 14, 1900, 178 U. S. 618, 44 L. ed. 1223. Amended March 31, 1911.1 See Act Feb. 13, 1911, allowing parties to print their records.

Promulgated December 22, 1911, 222 U. S.

Decisions

Rule 31 relates only to the form and size of the printed records, briefs, and arguments and has nothing to do with the clerk's fee for printing the record. Bean v. Patterson, 110 U. S. 401-403, 28 L. ed. 191, Oct. T., 1883.

RULE XXXII-Writs of Error and Appeals in Cases Involving Jurisdiction of Lower Court

Cases brought to this court by writ of error or appeal, where the only question in issue is the question of the jurisdiction of the court

Cases certified on quesvanced on motion.

tion of jurisdiction ad

below, will be advanced on motion, and heard under the rules prescribed by Rule 6, in regard to motions to dismiss writs of error and appeals.

A similar rule for causes brought up under sec. 5 of the Act of Mar. 3, 1875, was promulgated Jan. 16, 1882, as Rule 32, 104 U. S. ix; published in 108 U. S. 591; amended Mar. 10, 1890, 133 U. S. 711; again amended Nov. 28, 1892, 146 U. S. 707; amended Dec. 22, 1911, 222 U. S.

1 It is ordered by the court that the provisions of Rule 31 of this court shall apply to all records to be printed as provided in the Act of Congress entitled "an act to diminish the expense of proceedings on appeal and writ of error or of certiorari," approved Feb. 13, 1911.

Decisions

Cases advanced under Rule 32 are submitted like motions to dismiss under Rule 6; on printed briefs after service of notice and brief as required by Rule 6, sec. 4. Fletcher v. Hamlet, 116 U. S. 408-409, 29 L. ed. 679, Oct. T., 1885.

Motions under this rule should be accompanied by an agreed statement of the case or by such extracts from the record as will show that the case is one to which the rule is applicable. Call v. Palmer, 106 U.S. 39, 27 L. ed. 61, Oct. T., 1882.

A writ of error to a State court which affirmed a judgment of a trial court refusing to yield its jurisdiction on a petition for removal, Held, within the spirit of Rule 32 and may be advanced and heard under the rules prescribed by Rule 6 in regard to motions to dismiss. Burlington, C. R. & N. Ry. Co. v. Dann, 121 U. S. 182, 30 L. ed. 885, Oct. T., 1886.

Where the case is disposed of on motion to dismiss (under Rule 6), an order to advance on motion of appellants under Rule 32 will not be made. Aspen M. & S. Co. v. Billings, 150 U. S. 31-34, 37 L. ed. 987, Oct. T., 1893.

It is plain that it was the intent of Congress that a party whose suit has been dismissed by a Circuit (District) Court for want of jurisdiction shall have the right to have such judgment reviewed by the Supreme Court. Wetmore v. Rymer, 169 U. S. 115–118, 42 L. ed. 683, Oct. T., 1897.

The opinion refers to the Act of Mar. 3, 1875 (18 Stat. L. 472); the Act of Aug. 13, 1888 (25 Stat. L. 433), repealing the last paragraph of sec. 5 of the Act of Mar. 3, 1875; the Act of Feb. 25, 1889 (25 Stat. L. 693), and the Act of Mar. 3, 1891, and in a cause where the Circuit Court dismissed the suit as not within the jurisdictional amount, reviewed the judgment on a writ of error to the Circuit Court, and stated that as prescribed by sec. 5 of the Act of Mar. 3, 1891, the question of the jurisdiction of the Circuit Court was alone presented for decision. Ib. 118-119.

The question of the value of the property in dispute and whether it is of a value sufficient to give the Circuit (District) Court jurisdiction is purely one of fact; yet if that question is determined by the court without a jury upon affidavits, upon a writ of error, the Supreme Court is not restricted to errors of law shown by the record, but may review the question of fact and determine upon the evidence in the record whether the dismissal for want of jurisdiction was warranted. Ib. 119-123.

Where the question of the jurisdiction of the Circuit (District) Court is raised, either by the defendant or by the court on its own motion, the

court may order the issue tried by the jury, or himself hear and determine it; but if the court determines the question, its action must be in a form that will enable the Supreme Court to review its judgment, so far as to determine whether the conclusion of the court was warranted by the evidence. Ib. 120–122.

Prior to the Act of Mar. 3, 1875, questions going to the jurisdiction of the court could only be raised by a plea in abatement in the nature of a plea to the jurisdiction, and whether the plea presented questions of law or questions of fact when presented for review by an agreed statement of facts or upon exceptions to the ruling of the trial court, only questions of law were reviewable on writ of error. Ib. 119.

In order to bring a case within Clause 3 of sec. 5 of the Act of Mar. 3, 1891, which allowed a direct appeal to the Supreme Court "in any case which involves the construction or application of the Constitution of the United States," the Circuit Court must have construed the Constitution or applied it to the case, or have been requested, and have declined or omitted, to construe or apply it. Cornell v. Green, 163 U. S. 75–78, 41 L. ed. 77, Oct. T., 1895.

The Act of Feb. 25, 1889, gave the Supreme Court jurisdiction without regard to the amount involved to review final judgments in the Circuit Courts of the United States in which a question of the jurisdiction of the lower court was involved, but where the decree or judgment did not exceed the sum of five thousand dollars, its review was confined to the question of jurisdiction; Held, that although the record failed to show that the question of jurisdiction was raised in the court below by any plea or motion, yet as the record failed affirmatively to show jurisdiction the Supreme Court was bound to take notice of the defect. Mattingly v. The Northwestern, etc., Co., 158 U. S. 53-57, 39 L. ed. 895.

The fifth section of the Act of Mar. 3, 1891, did not authorize a direct appeal to the Supreme Court in a suit involving the jurisdiction of the Circuit Court over another suit previously determined in that court. Carey v. Houston & T. C. R. Co., 150 U. S. 170-180, 37 L. ed. 1044, Oct. T., 1893.

If both a question of jurisdiction and other questions were before the court below and a writ of error is allowed in the usual and general form to review its judgment, without defining or indicating any specific question of jurisdiction, the Supreme Court could not take jurisdiction under the first paragraph of sec. 5 of the Act of Mar. 3, 1891 (sec. 238, Judicial Code), as there was no such clear, full and separate statement of a definite question of jurisdiction as would supply the want of a formal certificate under the first clause of that act. Chappell v. United States, 160 U. S. 499-508, 40 L. ed. 513, Oct. T., 1895.