Dowling v. Buckey

U.S. Court of Appeals for the D.C. Circuit November 24, 1905

Dowling v. Buckey, 26 App. D.C. 266 (D.C. Cir. 1905)

1905 U.S. App. LEXIS 5358

Opinion of the Court

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The áppellee, Thomas W. Buckey, has moved to dismiss this appeal because no citation was issued and served as required by section 5, rule 10, of this court.

It appears that citation was issued in due time after entry of the appeal in the court below, but had been returned unserved because of failure to pay the fee required therefor. If this were all that is shown by the record the appeal would have to be dismissed. Chester v. Morgan, 11 App. D. C. 435, 439.

The appellee, was, however, informed of the prosecution of the appeal by notice given, under the rules, of appellant’s designation of the parts of the record to be included in the transcript. To this designation he expressly consented, and the transcript prepared in accordance therewith was then obtained and filed *268with the clerk of this court. By this action the failure to serve tbe citation was waived, and the motion will, therefore, be denied. Denied.

Reference

Full Case Name: DOWLING v. BUCKEY
Status: Published
Syllabus: Appellate Practice; Citation; Waiver. I. Where the record on appeal shows that the citation required by section 5, rule 10, of this court, although issued in due time in the court below, was returned not served because of failure to pay the fee required therefor, the appeal will be dismissed. (Following Chester v. Morgan, 11 App. D. C. 435.) 2. The failure to serve a citation on the appellee after the entry of an appeal to this court is waived by the appellee where he expressly consents to the appellant’s designation of the parts of the record to be included in the transcript, and the transcript, prepared in accordance therewith, is obtained and filed in this court.