1. On the merits of the motion, there is no essential difference
between this case and the case of the
St. Louis, Iron Mountain,
and Southern R. Co. Co. v. The Southern Express Company, just
decided. Reference to the master to take and state an account
between the parties as to the compensation during the litigation
and up to its final termination relates to matters of
administration not involving the merits.
2. A certificate that the transcript is a "true, fall and
perfect copy from the record of all the proceedings in the suit" is
sufficient to give jurisdiction.
3. If the certificate is not correct, the remedy is by
certiorari.
4. Where en the face of the decree it appears that a case was
disposed of on demurrer to the bill, the evidence on file is not
necessary for the hearing of the bill.
5. When a record has not been printed, and parties do not agree
as to its contents, certiorari may be granted, reserving all
questions till return.
Motion by appellees to dismiss the appeal, and, in case of
denial of this motion, for certiorari to bring up record and proofs
from below.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This motion to dismiss is made because, as is alleged 1, the
decree appealed from is not a final decree, and 2, the transcript
is not properly certified.
1. As to the decree.
The case is in some particulars different from that of the
St. Louis, Iron Mountain & Southern Railway Company v.
Southern Express Company, just decided, but in our opinion the
differences do not materially affect the present question.
Page 108 U. S. 31
The decree in this case, as in that, requires the railway
company to carry for the express company, and fixes the rate of
compensation, "until the further order or decree of this [circuit]
court." In this case, the reference to the master
"to take and state an account between the parties as to the
compensation that should be and has been paid during the
litigation, and up to the final termination thereof"
was entered before or at the time of the decree from which the
appeal was taken. Still, in this, as in that, the reference is in
respect to matters affecting the administration of the cause, and
does not involve the merits. The reservation of power to change the
rates operates only on the future, and was evidently intended for
the purpose of enabling the court to act in case a change should be
required. As the decree stands, the express company can require the
railway company to carry at the rate which has been fixed.
2. As to the certificate.
The clerk certifies the transcript sent up to be "a true, full,
and perfect copy from the record of all the proceedings in the
suit." Certainly this is sufficient for all the purposes of
jurisdiction. If, in point of fact, the certificate is not true,
the remedy is by certiorari to supply deficiencies, and not by
motion to dismiss.
To meet this view of the case, the appellee suggests diminution,
and asks for a certiorari to bring up
"the evidence taken before . . . William H. Rossington, as
examiner, . . . remaining on file in the office of the clerk,
constituting the exhibits, depositions, and proofs used on the
argument of the cause in the . . . circuit court."
Upon the face of the decree, it appears that the case was
disposed of on demurrer to the bill. If that be the truth, the
evidence on file is not necessary for the hearing of the appeal,
but as the record, which is here, has not been printed in full, and
the parties do not agree in their statements as to what it
contains, we will grant the certiorari asked for, reserving all
further questions until the return is made.
