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U.S. Supreme Court

Barber Asphalt Paving Co. v. Standard Co., 275 U.S. 372 (1928)

Barber Asphalt Paving Company v. Standard Asphalt & Rubber Company

No. 194

Argued October 4, 5, 1927

Decided January 3, 1928

275 U.S. 372


1. Equity Rule 75b, which prescribes the form and manner in which the evidence in a suit in equity in the district court may be made a part of the record therein for the purposes of an appeal, is authorized by Rev.Stats. §§ 913, 917. P. 275 U. S. 381.

2. Equity Rule 75b applies to cases to be appealed to the circuit court of appeals. The Act of February 13, 1911, which relates to the manner of making up and printing the transcript of record of every kind of action or suit where review is sought in that court, and which provides that the transcript shall contain, inter alia,

"such part or abstract of the proofs as the rules of such circuit court of appeals may require, and in such form as the Supreme Court of the United States may by rule prescribe,"

did not withdraw from this Court the power of regulation on which Equity Rule 75b depends. P. 381. chanroblesvirtualawlibrary

Page 275 U. S. 373

3. The excepting clause of the Rule, providing that "if either party desires it, and the court or judge so directs, any part of the testimony shall be reproduced in the exact words of the witness," applies only to such parts as need to be examined in that form to be rightly understood; as to other parts of the evidence, it neither qualifies nor relaxes the direction for condensation and narration. P. 275 U. S. 383.

4. A total failure to comply with Rule 75b is not condoned by the Act of Feb. 26, 1919, directing that technical errors and defects not affecting the substantial rights of the parties shall be disregarded. P. 275 U. S. 384.

5. The district court has jurisdiction to conform a transcript to Equity Rule 75b when remitted to it for that purpose by the circuit court of appeals after an appeal of the case. P. 275 U. S. 385.

6. Expiration of the term of the district court at which the decree was entered without reservation of further time for settling a statement of the evidence does not affect the power of the district court to act under Rule 75b. P. 275 U. S. 385.

7. When evidence taken in a court cannot be identified by the judge because of his death, and evidence taken by a master bears neither his certificate nor the file mark of the clerk, resort may be had to other means of identification. P. 275 U. S. 385.

8. Affirmance of the decree held too severe a penalty to be inflicted by the circuit court of appeals for failure to obey the requirements of Equity Rule 75b concerning condensation and narration in view of previous indulgence of such violations by that court and the district courts of the circuit. P. 275 U. S. 386.

9. In such a case, held that the transcript should be remitted to the district court for compliance with the rule, upon condition that the appellant pay a sum specified into the circuit court of appeals to reimburse the appellee for counsel fees and expenses incurred in securing elimination of the objectionable statement of evidence, besides the costs here and in the circuit court of appeals. P. 275 U. S. 387.

16 F.2d 751 reversed.

Certiorari, 274 U.S. 728, to a decree of the circuit court of appeals, affirming a decree of the district court in a patent infringement suit upon the ground that the evidence had not been brought into the record in accordance with Equity Rule 75b. chanroblesvirtualawlibrary

Page 275 U. S. 374

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