INCORPORATED TOWN OF GILMAN v. FERNALD, 141 F. 940

PER CURIAM. A motion has been made to dismiss the writ of error in this action because, although the writ was returnable on or before the 12th day of November, 1904, the transcript of the record was not filed until November 28, 1904. Rule 16 of this court requires the filing of the record with the clerk by or before the return day. Subdivision 5 of rule 14 provides that all appeals, writs of error, and citations must be made returnable not exceeding 60 days from the date of signingthe citation. The citation in this case was signed on October 26, 1904, and was returnable on or before December 25, 1904.

The writ of error and the citation should have been made returnable at the same time, but through some oversight they were made returnable at different times. The transcript was filed within the time fixed for appearance in the citation. The expense of printing the record, which amounted to at least $100, was paid in January, 1905, and the motion to dismiss the writ was-not filed until February 17, 1905. The writ of error appears to have-been prosecuted in good faith, and the delay in filing the transcript did not continue the case over any term of this court.

Where a transcript of the record is filed within 60 days from the signing of the citation and within the time specified therein, but after the return day of the writ of error, and the failure to file it before that return day has not continued the hearing of the case over any term of this court, and no motion to dismiss the writ is made until the expense of printing the transcript has been incurred, the writ will not be dismissed. McClellan v. Pyeatt, 49 Fed. 259, 1 C. C. A. 241; Bingham v. Morris, 7 Cranch, 99, 3 L. Ed. 281; Altenberg v. Grant, 83 Fed. 980, 28 C. C. A. 244.

The motion to dismiss this writ is accordingly denied.