Kiehn v. Dodge County

Decision Date18 April 1927
Docket NumberNo. 7574,7575.,7574
Citation19 F.2d 503
PartiesKIEHN et al. v. DODGE COUNTY et al. HARMER et al. v. SAME.
CourtU.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.

STONE, Circuit 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:

"That the plaintiff is entitled to judgment herein against the impleaded defendant and each of them in the sum of twenty-one thousand nine hundred twenty-nine and 40/100 dollars ($21,929.40), with interest thereon at the rate of 6 per cent. per annum from and after December 4, 1924, and the plaintiff is entitled to judgment against the defendant herein, in the sum of twenty thousand dollars ($20,000.00), with interest thereon at 6 per cent. per annum from and after December 4, 1924.

"It is further ordered that this court retain...

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4 cases
  • Sykes v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 11, 1968
    ...for future ministerial orders does not in itself withhold the "finality" required to make the order appealable. See Kiehn v. Dodge County, 19 F.2d 503, 504 (8 Cir. 1927); see generally 6 Moore's Federal Practice ¶ 54.121 and particularly at p. 120, n. 48. Consequently, the order of December......
  • Doidge v. Cunard SS Co., 2073
    • United States
    • U.S. Court of Appeals — First Circuit
    • May 17, 1927
    ... ... and was appointed administrator of the estate of May Doidge by the probate court of Suffolk county, Massachusetts, March 3, 1924; that the defendant is a corporation organized under the law of Great ... ...
  • People of Puerto Rico v. Bank of Nova Scotia
    • United States
    • U.S. Court of Appeals — First Circuit
    • December 18, 1940
    ...493; Mayer v. White, 8 Cir., 12 F.2d 710; American Engineering Co. v. Metropolitan By-Products Co., 2 Cir., 275 F. 40; Kiehn v. Dodge County, 8 Cir., 19 F.2d 503. We accept the District Court's interpretation of its own The People of Puerto Rico on May 1, 1940, filed a notice of appeal from......
  • Crump v. Hill
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 24, 1939
    ...that, as under the former practice, application for and allowance of an appeal within the three months was jurisdictional, Kiehn v. Dodge County, 8 Cir., 19 F.2d 503, Robie v. Hart, Schaffner & Marx, 8 Cir., 40 F.2d 871, Donaldson v. Baltimore Acceptance Corp., 3 Cir., 38 F. 2d 215, Roberts......

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