In re General Equity Rule 75

• Decision Date: 14 October 1914
• Docket Number: In re OUR RULE 15.1
• Citation: 222 F. 884
• Parties: In re GENERAL EQUITY RULE 75.
• Court: U.S. Court of Appeals — Sixth Circuit

222 F. 884

In re GENERAL EQUITY RULE 75.

In re OUR RULE 15.1

United States Court of Appeals, Sixth Circuit.

October 14, 1914

PER CURIAM.

Motions recently decided and others now pending involving these rules justify a formal statement of our conclusions.

Rule 75 fixes no time within which the statement of evidence must be settled and filed in order to 'become a part of the record for the purposes of the appeal. ' Undoubtedly, the better practice is to complete this step before claiming, or at least, before perfecting the appeal, and if the term expires before the final statement of evidence is filed, to enter an order carrying this matter into the next term; but where appeals are required within 30 days, or even within ten days, the time may be wholly insufficient to perfect the record in this respect, and the expiration of the term may very commonly be forgotten, particularly as it has never been a matter of importance in equity appeals. It is said that the completing of this statement of evidence corresponds to the settling of a bill of exceptions at law, and the familiar rule is invoked that a purported bill of exceptions which was not settled within the trial term or pursuant to a reservation during the trial term is a nullity and will be stricken from the record. We are not satisfied that the analogy is close enough to justify the incorporation of this harsh rule into the practice pursuant to rule 75, which must have been adopted with due consideration of the existing practice by which appeals were claimed and perfected regardless of the expiration of terms; and we conclude that the trial court has power to approve and direct the filing of the statement of evidence, although the term has expired when the decree was rendered, and although no order was entered carrying the subject-matter over until the next term.

The same general view leads also to the conclusion that the perfecting of an appeal by the approval of a bond and the signing of citation does not deprive the trial court of jurisdiction to settle the evidence. It is true that for general purposes, jurisdiction over the cause is thereby ended, and that the shaping of this statement of evidence involves the decision by the judge of disputed claims; but upon the whole, the proceeding is rather ministerial, and it sufficiently pertains to the making of the return to the appeal so that we think a statement of evidence so approved and filed...