STRUETT v. HILL, 269 F. 247

HUNT, Circuit Judge (after stating the facts as above). Rule 75 of the Equity Rules makes it the duty of the appellant to file with the clerk of the court in which the appeal is prosecuted a praecipe for the portions of the record to be incorporated in the transcript on appeal, and requires the appellee, if he shall desire an additional portion of the record incorporated, to file with the clerk a praecipe within 10 days unless the time shall be enlarged by the court or judge.

The rule also prescribes how the evidence shall be included and puts the duty of condensing and stating the evidence primarily upon the appellant, “who shall prepare his statement thereof and lodge the same in the clerk’s office for the examination of the other parties at or before the time of filing his praecipe under paragraph ‘a’ of the rule.” Appellant is required to notify the other parties of such lodgment, and of a time and place when he will ask the court or judge to approve the statement, the time so made to be at least 10 days after such notice.

At the expiration of the time named, or such further time as the court or judge may allow, “the statement, together with any objections made or amendments proposed by any party, shall be presented to the court or judge, and if the statement be true, complete, and properly prepared, it shall be approved by the court or judge; and if it be not true> complete or properly prepared, it shall be made so under the direction of the court or judge, and shall then be approved.

When approved it shall be filed in the clerk’s office and become.a part of the record for the purposes of the appeal.” In case of differences between the parties concerning directions or general contents of the record prepared on appeal, they shall be submitted to the court or judge, and shall be covered bv directions which the court or judge may give on the subject. It will be noticed that rule 75 fixes no time within which the statement of the evidence must be settled and filed in order to become a part of the record for the purposes of the appeal.

The Court of Appeals for the Sixth Circuit, in General Equity Rule 75, 222 Fed. 884, 138 C. C. A. 574, said that while it is a better practice to complete such a step before perfecting the appeal, and if a term of court should expire before the final statement of evidence is filed, to enter an- order carrying the matter into the next term, nevertheless, it might be that the time would be wholly insufficient to perfect the record during the term, and the expiration of the term might often be forgotten, as it was not regarded as a matter of importance in equity appeals. This construction seems most reasonable.

The common-law bill of exceptions is not the proper way to present the evidence in an equity appeal. The practice is regulated by the equity rules adopted by the Supreme Court. Ex parte Story, 12 Pet. 339, 9 L. Ed. 1108; Johnson v. Harmon, 94 U. S. 371, 24 L. Ed. 271; Buessel v. United States, 258 Fed. 811, 170 C. C. A. 105.

We are in agreement with the view of the court in the case heretofore cited that rule 75 was adopted -with due consideration of the existing practice by which appeals were claimed and permitted, regardless of the expiration of terms, and 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 no order has been entered carrying the subject-matter over until the next term.

We do not think the power to settle the evidence is lost by the District Court, although there has been an approval of a bond on appeal and a citation has been signed. “It is true,” said the Court of Appeals in the case cited, “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 cannot, for that reason alone, be stricken from the record.” In United States v.

Great Northern Railway Co., 254 Fed. 522, 166 C. C. A. 80, we held that, in an action in equity to cancel a patent, a motion to strike what was termed a bill of exceptions from the record was without merit, and said: "A statement of the evidence, with the approval of the judge, is ail that is required in an equity cause, where an appeal is to be prosecuted. Federal Equity Rule 75 (198 Fed. xl, 115 C. C. A. xl). An approved statement of the evidence is really what was filed in the present case, and not a bill of exceptions.” Westermann Co. v. Despatch Printing Co., 283 Fed. 609, 147 C. C. A. 417.

It is clear that no rule of the District Court can conflict with Ihe rules of the Supreme Court. It being our opinion that the District-Court had not lost jurisdiction merely because the record was not filed within 10 days after the entry of decree, or within any extension granted, the order to show cause must be granted, and will issue accordingly. Motion granted.