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JONES v. MANN et al.

(Circuit Court of Appeals, Fourth Circuit.

February 14, 1896.)

No. 160.

Appeal — Dismissal—Delay in Furnishing Recoups and Briees.

Where the ease is docketed and the record filed before the return day, as prescribed by rule 10 of the circuit court of appeals for the Fourth circuit (11 C. C A. cvi., 47 Fed. vil.), the appeal will not be dismissed, although the appellant so long delayed the filing of the record that it was impossible for him to file and furnish to the opposite parties the printed copies of the record and of his brief within the times prescribed by rules 2S and 24 (11 C. C. A. lii., 48 Fed. iii.).

Appeal from the District Court of the United States for the Eastern District of Virginia.

Alfred P. Thom, for appellant.

Sharp & Ilughes and Whitehurst & Hughes, for appellees.

Before GOFF and SI.MOXTOX, Circuit Judges, and PAUL, District Judge.

SIM ONTOX, Circuit Judge.

This is a motion to dismiss the appeal in this case (1) because appellant did not print and file 20 copies of the record 20 days before the beginning of the term; (2) because he did not furnish to the appellees 3 copies of the record 10 days before the term; (3) because he did not file 20 copies of printed brief 10 days before the term. Rule 16 of this court (11 C. C. A. cvi., 47 Fed. viii.) makes it the duty of appellant to docket the case and file a record thereof with the clerk of this court by or before the return day, whether in vacation or in term time. The decree appealed from was filed on December 4, 1895. Appeal allowed, and citation issued 4th January, 1896. The record was filed 22d day of January, 1896, and the return day of the citation was 1st February, 1896. So in this respect (he appellant was within the rule. It is true, he might by great diligence have filed the record sooner, but he was not required to do so, and cannot be punished for not doing so. The record having been filed on 22d of January, and printed on the 30th January, it was impossible for appellant to file printed copies with the clerk 20 days before the term, which began 4th February, 1896, as required by rule 23 (11 C. C. A. lii., 48 Fed. iii.), and equally impossible for him to file with the clerk 10 days before the term printed copies of his brief, as required by rule 24, Id. But as his inability to do these resulted from the late date at which the record was filed and printed, and as the filing at that date broke no rule of this court, he cannot he punished for not following rules 23 and 24. Circumstances prevented the trial of the case at this term. It is continued, the motion being refused.

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