Stearns v. The United States/Opinion of the Court

THE fourteenth rule of this court declares that no certiorari for diminution of the record shall be awarded unless the motion be made at the first term of the entry of the cause, and 'unless upon special cause shown to the court accounting satisfactorily for the delay.'

The present case having been continued to the next term, Mr. Cushing asked leave, although more than one term had passed since the entry of the cause, to file a suggestion of diminution of the record. He stated that the counsel in the case in California had been unaware of the rule requiring such a suggestion and motion to be made at the first term; for which reason they had not sent on the papers at an earlier day; and he submitted the fact as a sufficient reason for granting the motion now, inasmuch as the cause having been already continued till the next term, the granting of it would not cause and delay in the hearing.

In support of this view, he cited Clark v. Hacket and Morgan v. Curtenius.

THE COURT granted leave, and ordered the certiorari.