Opinion
Submitted January 4, 1888. Decided January 9, 1888.
A stipulation, made before judgment in the court below, that "in the Supreme Court of the United States this cause shall be submitted to the court without any oral argument, either side, however, having the right to file a printed brief or briefs," is not a submission under the 20th Rule; and, under such a stipulation, this court will not apply that rule to the case on the suggestion of one of the parties against the protest of the other.
Mr. Henry Wise Garnett for the motion. Mr. Martin F. Morris, opposing.
MOTION TO SUBMIT this cause under Rule 20. The motion was founded upon a stipulation entered into between the attorneys for the plaintiff and the defendant in person, in the court below, before trial there, the material clauses in which stipulation were as follows:
"Said cause shall be heard upon the agreed statement of facts hereto annexed as a part hereof. . . . Said cause may be submitted to the court and heard and decided by the court (without any jury) upon said agreed statement of facts and . . . may be certified to the general term of this court . . . and if not so certified an appeal may be taken by any party from the decision or judgment of the Circuit Court to said court in general term, and that in case of such appeal no bond shall be required . . . and that either party to this cause may take an appeal or writ of error from the decision of said court in general term to the Supreme Court of the United States, and that in that event said cause shall be heard and decided in the same manner by the Supreme Court of the United States. . . . That in the Supreme Court of the United States this cause shall be submitted to the court without any oral argument, either side, however, having the right to file a printed brief or briefs in the Supreme Court of the United States."
This motion is denied. While the stipulation binds the parties to submit the cause without oral argument, there is nothing which requires this to be done at any particular time. Its terms will be fulfilled if the submission is made when the case is reached in its order. As no reference is made to Rule 20, we cannot apply that rule to the case on the suggestion of one of the parties against the protest of the other.
Denied.