GREGORY v. PIKE et al., 64 F. 415

PUTNAM, Circuit Judge. By a petition filed under a cross appeal, Butterfield, the appellant therein, claims that the transcript of the record in this case is defective. The method of the proceeding may be irregular, but no objection on that score was pressed on the court, and all parties desire the case put in position for prompt hearing. The facts needed to be referred to in this preliminary matter are few. Gregory, the appellant, was sole plaintiff in the original bill in the circuit court.

Butterfield was not originally made a defendant in that bill, but by force of subsequent proceedings was recognized by the court as brought in as such by amendment, and was allowed to file a cross bill. The final decree below in terms dismissed this cross bill, and Butterfield was allowed an appeal, whether from the dismissal of the cross bill or from other parts of the final decree it is not important to consider at present. The appeal thus allowed him is the cross appeal already referred to.

Butterfield was, oh his own motion, at one stage of the case below, apparently dismissed as a defendant in the original bill. He was not named as a party appellee in Gregory’s appeal, and it is claimed that he has no standing in this case. Whether it js so, or whether the omission to name him as an appellee was an irregularity, we need not now consider. It is enough for all present purposes that his cross bill was recognized in the final decree below, and that we cannot determine the effect or propriety of that recognition unless we have the cross bill before us.

The clerk below, at the request of appellant, omitted from the transcript in this case the cross bill and the proceedings under it; and he was probably justified in so doing by our expressions in Nashua & L. R. Corp. v. Boston & L. R. Corp., 9 C. C. A. 468, 61 Fed. 287. But this action of the clerk was, of course, in all respects subject to revision by this court The original bill and the cross bill in the court below constituted, of course, but one suit (Ex Parte Railroad Co., 95 U. S. 221, 225), and by immemorial usage was so docketed in that court.

But separate and distinct appeals, whether there is or not any cross bill, are, by long usage," separately docketed, though in substance, under usual circumstances, only one case, and usually required to be argued as such. Sup. Ct. Rule 22, and our Rule 25. For this reason

section 1013 of the Revised Statutes was able to provide that one transcript of the record filed by either appellant might be used in both appeals. It is, however, claimed by Gregory, and by the appellees other ilrnn Butterfield, that the proceedings in ilie court below touching Butter-field have left him no standing as defendant in the original bill, and that the merits of (hat bill can be disposed of without consideration of the cross bill. There sometimes are cases where the appellate Tribunal easily perceives that a partial transcript is sufficient, and can safely hear an appeal on that.

But clearly this matter is too involved to permit the court to assume to foresee what its phases are, ami the reference to the cross bill in the final decree, already referred to, enforces this proposition. We cannot proceed unless some one brings the whole record before us. As it is apparent this case needs speedy action, we avail ourselves of the privilege given by Railroad Co. v. Schulte, 100 U. S. 644, cited in Nashua & L. R. Corp. v. Boston & L. R.

Corp., ubi supra, of announcing in advance a purpose to dismiss unless a. full transcript is filed, rather than await the usual and less expeditious remedy by certiorari. The question remains, to whom shall we first apply whatever order we may make? We have uo power to compel any party to bring' up a record by a direct order to that effect, unless the issue of a writ of certiorari can be construed as the exercise of such power. We have, however, an inherent power to dismiss unless a proper transcript is filed, which may be exercised under the rules or specially.

But both Gregory and Butterfield are appellants, and in what order of priority as between them shall this power be exercised? Gregory was the complainant in the original bill, and so set the litigation in motion; and when such a complainant becomes appellant the usage is to look first to him for the record. If he elects not to file it, and. h!s appeal is dismissed in consequence thereof, it will be in season to consider the fate of other appeals, in case the appellants therein make like default when their appeals are called for argument, if no earlier occasion for such consideration arises.

Ordered, that appellant Gregory file as soon as practicable a transcript of all parts of the record in the circuit, court, including the cross bill of Butterfield, and all proceedings and proofs thereon, not included in (he transcript already filed, and cause the same to be forthwith thereafter printed under the rule, on peril of this appeal being’ dismissed.