Kiehn v. Dodge County
Decision Date | 18 April 1927 |
Docket Number | No. 7574,7575.,7574 |
Citation | 19 F.2d 503 |
Parties | KIEHN et al. v. DODGE COUNTY et al. HARMER et al. v. SAME. |
Court | U.S. Court of Appeals — Eighth Circuit |
John F. D. Meighen, of Albert Lea, Minn. (J. J. McCaughery, of Kasson, Minn., and Meighen, Knudson & Sturtz, of Albert Lea, Minn., on the brief), for plaintiffs in error.
F. G. Sasse, of Austin, Minn. (John Swendiman, Jr., of Dodge Center, Minn., on the brief), for defendants in error.
Rhodes E. Cave, of St. Louis, Mo., for Federal Surety Company.
Before STONE and KENYON, Circuit Judges, and POLLOCK, District Judge.
These are separate writs of error from judgments favoring the county of Dodge (Minnesota) in two actions on bonds given to secure payment of county moneys deposited in two banks which failed while having such moneys in their custody.
A motion has been filed in each case to dismiss the writ of error because not taken within 3 months after entry of the judgment upon which it is based. These judgments were entered on November 28, 1925. Therefore, they were subject to the Act of February 13, 1925 (43 Stat. 936, 940, § 8c Comp. St. § 1126b), which is that no writ of error shall be allowed "unless application therefor be duly made within three months after the entry of such judgment." The applications for these writs were made on May 11, 1926, 5 months and 13 days after the entry of the judgments. The above statute is jurisdictional.
Plaintiffs in error contend that this was not a final judgment as of November 28, 1925, for two reasons: (1) That jurisdiction was expressly retained by the trial court as to certain matters which prevented the judgment being complete and final; and (2) that there were successive suspension orders which tolled the judgment beyond that date and within three months of the application for the writ.
1. If plaintiffs in error are right as to this first contention, the writs of error should be dismissed because appeals to this court must be from final judgments and decrees except for certain statutory exceptions which do not include this action. The court stated his findings of fact and conclusions of law. Among the latter were the following:
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