ARGUED AND DETERMINED
UNITED STATES CIRCUIT COURTS OF APPEALS AND THE .
CIRCUIT AND DISTRICT COURTS.
(0IrcuU Coort &jAppeals, Fifth 01JrcuAt. November ST, 1891.)
.I.PPJI.u.-DDlINUTION Oll' RECORD-CERTIORARI.
On appeal to the circuit coui-to! appeals the clerk of the court below, .belng the of the record, is to determme, in the absence of agreement of counsel, evidence shall be included in the transcript following the note of evidence made under the rule of court;' and if any omissions are found relief can be had by certiO'l'ari for diminution· of the record, as provided by court rule 18.
A transcript whioh contains all the parts of a deposition called fOr by either party
Appeal from Circuit Court, Southern District of Mississippi. , , Suit byA. L. Blanks and others against E.B. Klein and others. Pln.lntiff appeals. Heard on motion for alternative mandamus to clerk to certify copy of record. Motion denied. ' Wade R. Young, for petitioners. Mayre Dabney, opposed. Before PARDEE, Circuit Judge, and LoCKE and BRUCE, District Judges.
LoCKE, District Judge. This motion coming on upon notice, and the parties appearing and presenting the facts of the case, we are able to decide the matter without issuing the writ or waiting for a return. The real question appears to be as to what should be contained in the record, and not as to whether the clerk should be ordered to certify the trnnscript. The clerk is the custodian of the record, and, in the absence of an agreement by counsel, it is for him to determine what evidence shall be included in the transcript following the note of evidence made under the rule of oourt. Upon the record being if any omission or addition is found. v.49F.no.l-1
relief can be had by either party under rule 18} Upon this motion there is presented with the answer of the clerk what he as clerk certifies under seal to be a correct transcript of the record, together with such portion of the deposition of George M. Klein as is called for by the counsel in the case for the respective parties. If this deposition was presented, and any portion of it read the whole should be put in and sent up, or, if there fii'ahy good reason why that should not be done, certainly each party should be permitted to have included in the transcript such portion as he roilY sUits9isease. A deposition presented and admitted-as it appears from the note of evidence that that of George M. Klein in this case w!l!/l-cannot be used by one party exclusively for his own purposes, and the other party prohibited from has ,to to the evi-. dence offered him in! the court below, and reserve'S\lch question' for the appellate9ourt. , It, is, not within the clerk either to diminish the tecord b'y leaving out any evidence presented below on account of its being considered irrelevant, or to increase it with matter not presented. The copy of the transcript presented and certified by the clerk to be a true copy of the record as appears on file in the court below, except that only such portions of the deposition of George M. Klein mentioned in item 18, page 21" 6f the transcript is inserted as is called for by the counsel in the case for the respective parties, appears to be a complete transcriptofthe recOrd, except as to the deposition of George M. Klein, and of that to t?at the partieson each side desire; and we think ,it should be accepted by appellants as a sufficient transcript. ,It is therefore ordered that the 'motion be denied, with costs; and, it appearing that the time fOf filingsaidtraIiscript has expired pending proceedingsllnder this motion, it is further that appelhave 20 Aays in whi<;h to file said
1 Rule 18 fa BII follows: "No certW'rari for diminution of the record will be hereafter awarded in any caae unless,a JD,otion therefor, shall be made in writing, and the facta on which the same fa founded shall, it not admitted by the other party, be verified by aftldavit. And all motions' for sucb'certiorari must he 'made at the Arst term of tbe entry oftbe CBllClj will not he granted, uDl_ UPOD apecial oauMt ahOWD to Ule court.. acelOI1DtiilIiatill1aotor1l7 for the
NEW YORK,N. 'H. & H. :R. CO. f. COcJKCROF't.
N. H. &'H. R. Co.'''', COCKCRon et aL
(O£rcuU Oourt, D.,ConnecUcut. February:3,lll9\l.)
FJIl)'IR.lL CotT.RTs--FOJ.LOWING IiITATB LAW.
The decisions of a state court as to the BUfllciency of an appeal In a specla1pro;. OOeding are controlling upon the federal courts.
",8AJI:BH-DBCISION 0-; RAILWAY
A railroad compaDyprocured the assent of the CODDecticut railway commissionersto'the takiDg of carta,IIi lands, and applied to tble judge of the superior court,to have the damages assessed. The land-O\Yner appealedtrom the order of the commissioners, and at the same time removed the proceedings for assessment to the , federal conrt. In tbls'court, 'hElP,leaded in abatement the,'pe,'ndency of th,e appeaL, Before the hearing ... to tlle lluftlcieDcy of the plea, the appeal was' dillmiuoo. by th,e'state court for want' of jurisdictioD., HeZd that, while the sumciency of the pilla was to be determined ... of the date it was flIed, yet the decision by the,state court was to be taken asshowiDg what the law was at that time.
All by the statute Itiving the of appeal from the order of the ers (Gen. St. Conn. S 8518, as' ameDded by Acts 1889, p.129) the same is, Dottake,B before the commissioDera"or allowed by or filed with them, but is aD iDdepeDdent JlroceediDg before the superior judge, the provisioD made by the statute that the aDpeal shall operate as a supersedeas does not come into operation until the court t$kes jurisdiction of the, appeal; aDd a decision by it that it has no jurisdiction thereof shows that there 'was no Bupersedeeu.
Application to Assess Value of Lands to be taken by a railroad company. Heard on demurrer to the 1'lea in abatement. Demurrer sustained. Harri8fYn, for plaintiff. Simeon E. Baldwin, for defendants.
WHEELER, Diatrict Judge. By the statutes of the state railroad companies appear to have the right to take additional lands for railroad purposes, and to locate, abandon, or change depots or stations, upon the consent of the railroad commissionl"rs, filed in the town-olerk's office, and payment or tender of damages ascertained on application to a judge of the superior court. And by section 3518 of the General Statutes, as amended by the Puhlic Acts of 1889, p. 129, a person aggrieved by any order of the railroad commissioners upon any proceeding relative to the location, abandonment, or changing of depots or stations mar appeal from the Bllme to the superior 'court by petition in writing, which may hear the appeal, re-examine the question of the propriety and expediency of the order appealed from as upon complaints for equitable relief, and, in case the order is not affirmed, make any other order in the premise8 which might have been made by the railroad commissioners therein; and such appeal is a super8edeas of the order appealed from until the final action of the court thereon. The plaintiff procured the consent of the railroad commissioners to the 'taking of the land in question. The defendants appealed to the superior court. The plaintiff made application to a judge of the superior court for ascertainment of the damages. The defendants removed that application to this court, and have pleaded the appeal in abatement. The plainti1f baa demurred, and the demurorer hu 'bem ,heard.