Teller v. United States

• Decision Date: 30 September 1901
• Docket Number: 1,603.
• Parties: TELLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

111 F. 119

TELLER v. UNITED STATES.

No. 1,603.

United States Court of Appeals, Eighth Circuit.

September 30, 1901

Syllabus by the Court.

The party who moves for a review of the action of the trial court is responsible to the appellate court for the insertion in the transcript returned to it by the clerk of the lower court of a copy of all the papers and proceedings necessary to the hearing, under the fourteenth rule of the circuit courts of appeals (31 C.C.A. cxxv.; 90 F cxxv.), and it is the duty of the clerk of the trial court to follow his praecipe designating the portions of the papers and proceedings to be returned.

Where the moving party files no praecipe it is the duty of the clerk of the trial court to see that the transcipt is a true copy of the papers and proceedings necessary to a hearing in this court specified in rule 14 (31 C.C.A. cxxv.; 90 F cxxv.), and it is also his duty to see that his certificate clearly shows this fact.

It is the duty of the clerk of the trial court to annex to and transmit with the record a copy of any opinion filed in the case relating to any of the rulings assigned as errors pursuant to the second paragraph of rule 14 (31 C.C.A. cxxv.; 90 F. cxxv.), although the moving party fails to designate such opinion in the praecipe which he files for the transcript.

Willard Teller and C. C. Dorsey, for plaintiff in error.

Timothy F. Burke, for the United States.

Before SANBORN, Circuit Judge, and LOCHREN, District Judge.

SANBORN Circuit Judge.

The plaintiff in error has interposed a motion to strike from the record the copy of the opinion of the court below upon the motion for a new trial in this case because the denial of that motion is not reviewable here, because the opinion was not specified in his praecipe designating the parts of the record to be returned to this court, and because the opinion is not properly a part of the record. The ruling of the court upon the motion for a new trial cannot, it is true, be considered in this court; but a comparison of the assignment of errors with the opinion upon that motion discloses the fact that many of the questions presented for the consideration of this court are discussed in that opinion and that the reasons of the court below for its rulings are there stated, so that the opinion will be of material assistance in obtaining a clear understanding of these issues of law and of the manner in which they arose. The general rule is that the plaintiff in error or appellant is responsible for the condition of the record in the appellate court, and that, when he files a praecipe designating the portion of the proceedings below to be certified, the clerk of the trial court should follow his directions, and leave opposing parties to procure any omitted portions of the proceedings by a writ of certiorari or other permissible proceeding. Where no praecipe is filed the clerk should be careful that the transcript he transmits to the appellate court contains a copy of everything specified in rule...