with the writ of error the record (which includes the bill of exceptions), the assignment of errors with a prayer for reversal, and the citation. Among the papers included in the record under the differing rules of the various circuits are: the declaration, the summons with proof of service or the notice of appearance, the answer or demurrer, proceedings in impaneling the jury, if any, and the verdict, the judgment, the bill of exceptions, the petition for writ of error, the assignment of errors, the order allowing the writ, the writ, the citation, the bond, and the certificate of the clerk authenticating the record. In some circuits the opinion below is considered a part of the record; in others the clerk is required to send up a copy of it distinct from the record or in addition to the record. In some circuits the clerk includes in the record a certificate of the cost thereof and by whom paid. The requirements in the different circuits as to what shall be included in the original record transmitted and as to what shall be printed varies so greatly that it is impossible to generalize. The practitioner should take care to examine the rule of the particular court in which he is proceeding. In some circuits it is permissible to cut down the record to be transmitted by stipulation of counsel for the respective parties; in others counsel may stipulate to reduce the record to be printed after the original has been transmitted. In general, it may be said that it is advisable to arrange with adverse counsel for a stipulation as, in most cases, the record will otherwise contain many papers which will be absolutely superfluous in the appellate court. For example, the petition for writ of error, order granting it, the writ, the bond, the citation and return of citation are usually unnecessary in the higher court.136 In the absence of stipulation some of the courts require the entire record to be transmitted, others vest in the trial judge the power to decide, and others provide for the determination of the papers to go in by the filing 136 In the Fourth Circuit, Rule 14 (7) provides that they shall not be printed but merely enumerated with their dates. of a præcipe in a manner similar to that described at p. 451 with respect to "designations." Irregularities in the transcript or certificate of the clerk do not defeat jurisdiction, but the transcript may be amended.137 The record is transmitted to the appellate court by the Iclerk of the district court as his return to the writ of error, under his signature and the seal of the court.138 § 327. Transmission of Original Papers. The rules in some circuits specifically provide that whenever it shall become necessary or proper, in the opinion of the appellate court or the court below, that original papers of any kind should be inspected by the appellate court, either the appellate court or the court below may make such rule or order for the safe keeping, transporting and return of such original papers as it may deem proper. In those circuits which have no such published rule, the same procedure is usually followed-the special order being within the power of the court regardless of the published rules. § 328. Further Steps in Procedure. The sections in the earlier part of this chapter, on steps in procedure not covered by the special rules applying to review of decisions of the Board of Tax Appeals, were written by reference to the rules applicable to appeals and writs of error, and are equally applicable to cases in which decisions of district courts are reviewed under writs of error. So the rules will not be repeated here, but the reader is referred to such earlier sections.139 $329. Decision and Mandate. Since, under Section 1011 of the Revised Statutes,140 there can be no reversal for error of fact, the power of the circuit court of ap 137 Burnham v. No. Chicago St. Ry. Co., 89 Fed. 168. 138 See rules cited in note 112, p. 457. 139 Docketing, $301; Entering Appearances, 8302; Diminution of Record, § 303; Printing of Record, § 304; Dismissals, § 305; Briefs, 306; Day Calendars, § 307; Argument, § 308; Rehearing, 8309; Fees and Costs, § 312. 140 Quoted on p. 455. peals over the judgment of the district court under a writ of error is the same as its power over a decision of the Board of Tax Appeals under the Revenue Act of 1926. The practice with respect to mandate is the same as in review of Board decisions.141 § 330. Fees and Costs. Where the United States was the defendant in the district court, or where the proceeding below was in the Board of Tax Appeals, the comments in Section 312 will be equally applicable where a review is by writ of error. But where the collector was the defendant below, there is nothing in the statutes or the rules which exempts him from liability for costs. Upon a writ of error the successful party is ordinarily entitled to costs.142 When the plaintiff in error is successful in any substantial part, he is usually allowed costs.143 Costs in the circuit courts of appeals on writ of error are governed by considerations similar to those which control costs in the district courts.144 For example, disbursements for printing briefs are not taxable as costs in the absence of a special rule.145 The costs include only fees of clerks, marshals and attorneys and reasonable fees to printers for printing the record. Even in printing the record the rules of some of the circuits provide that one who has unnecessary papers included in the record must bear the expense of printing them. The rules of the particular circuit should be carefully examined.146 Costs are taxed by the clerk, and the amount inserted in the mandate to the lower court. Where the judgment below is reversed with costs and the case is finally disposed of by the reversal, costs in the 141 See § 310, p. 447. 142 Unless the decision is a reversal on the ground of want of jurisdiction in the court below, Hinchman v. Ripinsky, 202 Fed. 625. 143 Lehigh & Wilkes-Barre Coal Co. v. Hartford & N. Y. Transportation Co., 227 Fed. 1019. 144 See § 225, p. 392. 145 Kursheedt Mfg. Co. v. Naday, 108 Fed. 918; Lee Injector Mfg. Co. v. Penberthy Injector Co., 109 Fed. 964. 146 Rule 31 in First, Fourth, Fifth, Eighth and Ninth circuits; Rule 28 in Second and Seventh circuits; Rule 29 in Third Circuit; Rule 27 in Sixth Circuit. district court are also reversed and are taxed against the unsuccessful party. This taxation takes place in the district court and the amount of costs taxed is carried into the judgment on the mandate. Where a new trial is ordered, the costs in the appellate court on writ of error are taxable immediately and do not abide the event of the trial.147 A schedule of costs and fees established by the Supreme Court and applicable in all the circuit courts of appeals, is given in the appendix.148 147 Berthold v. Burton, 169 Fed. 495. 148 p. 638. For authorities on many details with respect to costs in the circuit courts of appeals, see Foster, § 412. CHAPTER XII REVIEW BY THE SUPREME COURT OF THE UNITED STATES Page § 345. Security on Allowance of Writ § 331. Introductory § 332. The Supreme Court § 333. Admission to Practice § 334. Jurisdiction § 335. Nature of Certiorari § 336. When Certiorari will be Granted § 337. Time Within Which Application must be made § 338. Form of Application § 339. Parties-Death of Party § 340. Service of Petition. § 341. Brief on Application § 342. Respondent's Brief § 343. Submission of Petition § 344. Decision upon Application § 346. Docketing § 347. Filing Printed Record upon Allowance of Writ 471 §348. Transmission of Original Papers 472 § 349. Calendar Practice 472 § 331. Introductory. The Supreme Court of the United States is the court of last resort in tax cases and may be appealed to only by procedure under a writ of certiorari.'1 The procedure is the same whether the litigation originated in the Board of Tax Appeals, a district court of the United States or the Court of Claims. In the case of a proceeding in the Board or an action in the district court, an intermediate step must be taken by way of 1 Except where special questions are certified by a circuit court of appeals or the Court of Claims. Cf. § 358, p. 476. 474 475 475 476 476 476 476 |