173 F. 254 (9th Cir. 1909), 1,670., United States v. Dunne

Docket Nº:1,670.
Citation:173 F. 254
Case Date:September 07, 1909
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 254

173 F. 254 (9th Cir. 1909)




No. 1,670.

United States Court of Appeals, Ninth Circuit.

September 7, 1909

Page 255

John McCourt, U.S. Atty.

Bauer & Greene, for defendant in error.

In February, 1905, John H. Mitchell, then a United States Senator from the state of Oregon, was indicted by the grand jury for the district of Oregon for a violation of section 1782 of the Revised Statutes of the United States for agreeing to receive and receiving from one Frederick A. Kribs compensation for services rendered in appearing before the Commissioner of the General Land Office for the purpose of persuading the Commissioner to make special, expedite, and approve certain fraudulent applications and claims for tracts of public lands in the state of Oregon, in which the said Kribs was interested. The indictment contains seven counts, each alleging in substance that Mitchell, while a Senator of the United States, had accepted and received from Kribs various amounts set forth in the separate counts in payment for services rendered in appearing before the Commissioner of the General Land Office with relation to the applications, proceedings, claims, matters, and things in which the United States was directly interested. On this indictment Senator Mitchell was tried before a jury in the Circuit Court for the district of Oregon and found guilty. On the verdict as rendered by the jury the court, on July 25, 1905, entered a judgment that the defendant pay a fine of $1,000, and that he be imprisoned for a term of six months. Thereupon Senator Mitchell gave a supersedeas bond, and on July 29, 1905, sued out a writ of error from the Supreme Court, Senator Mitchell died. This fact being suggested to the court by counsel, the writ of error was dismissed by the court, and a mandate issued to the Circuit Court 'that such proceedings be had in said cause as according to right and justice, and the laws of the United States, ought to be had, the said writ of error notwithstanding. ' This mandate was filed in the Circuit Court on August 15, 1906, but no proceedings were had thereon until July 11, 1907, when David M. Dunne, the defendant in error, and the duly appointed and qualified administrator of the estate of John H. Mitchell, filed a motion, supported by his affidavit, praying for an order declaring the entire proceedings in the cause abated by reason of the death of the defendant, and for the cancellation of the fine imposed upon the defendant, together with the entry thereof in the judgment docket, and declaring the same to be no longer of any validity. The motion was granted, and a judgment entered accordingly. To this judgment the United States prosecutes the present writ of error.

Page 256

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW, Circuit Judge (after stating the facts as above).

In United States v. Pomeroy (C.C.) 152 F. 279, the defendant was convicted of giving rebates in violation of the interstate commerce act and its amendments, and sentenced to pay a fine. The defendant died after judgment and before the fine was paid. It was held by the Circuit Court that the judgment and entire proceedings abated on the death of the defendant, and it was not a claim enforceable against his personal representatives. An order was entered accordingly. The case was taken to the Circuit Court of Appeals for the Second Circuit upon writ of error, where the order was reversed upon the ground that when the order was entered the court had lost control of the judgment. The term in which the judgment was entered had expired before any proceedings in abatement had been taken. When, therefore, the court in a subsequent term made the order abating the judgment and all proceedings thereon, it had no power to make the order, and its action in making the same was held to be erroneous.

It is suggested on behalf of the United States that the same question arises in this case; that the judgment against Mitchell was entered on July 25, 1905, and the term in which the judgment was entered terminated on the first Monday of October, 1905, and the motion to abate the judgment was not entered until June 11, 1907. But the writ of error and supersedeas bond stayed the execution of the judgment and removed the record into the Supreme Court of the United States. Such proceeding, under section 1007 of the Revised Statutes, operated to suspend...

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