Blumenthal v. Shaw

• Decision Date: 06 November 1895
• Docket Number: 17.
• Citation: 70 F. 801
• Parties: BLUMENTHAL et al. v. SHAW.
• Court: U.S. Court of Appeals — Third Circuit

70 F. 801

BLUMENTHAL et al. v. SHAW.

No. 17.

United States Court of Appeals, Third Circuit.

November 6, 1895

The record entries of the proceedings in the circuit court beginning with the trial, were as follows '1894, Nov. 20th, trial, and jury drawn and sworn. 1894 Nov. 22d, motion for nonsuit. 1894, Nov. 23d, motion denied. 1894, Nov. 21st, 22d, 23d, and 24th trial continued. 1894 Nov. 24th, verdict for plaintiff, and his damages assessed at one thousand dollars, besides costs, & judgment accordingly. 1894, Nov. 24th, defendants move for a new trial. Ordered, that reasons be filed for the same in four days. 1895, July 25th, bill of exceptions signed, sealed, and filed. 1895, July 25th, defts.' petition praying for allowance of writ of error filed with assignments of error. 1895, July 25th, order allowing writ of error, and that petitioners execute bond with surety in $3,000. 1895, July 25th, said defts.' and petitioners' bond on writ of error in $3,000 filed. 1895, July 25th, said bond approved. 1895, July 25th, writ of error issued, with the approval of the district judge indorsed thereon, and copy lodged. 1895, July 25th, citation to deft. in error issued, marshal returns served, etc. 1895, Aug. 9th, citation filed.'

The minutes of the court under date November 24, 1894, omitting the caption, etc., are as follows:

'The trial of the issues herein was resumed and concluded, and the court charged the jury.

'Verdict: 'And the jurors aforesaid, upon their oaths and affirmation aforesaid, do say that they find for the plaintiff, and assess his damages at the sum of one thousand dollars, besides costs.'

'The defendant moves for a new trial, and thereupon it is ordered that reasons for the same be filed in four days. The jurors were discharged from any further attendance at this term. Court then adjourned until Monday next, at 10 o'clock a.m.'

Willard Saulsbury, for plaintiffs in error.

Herbert H. Ward, for defendant in error.

Before ACHESON and DALLAS, Circuit Judges.

PER CURIAM.

We have very carefully considered the motion of the plaintiff in error for the dismissal of his writ of error in this case upon the ground that there was and is no final judgment in the court below. We, however, think it is not desirable that we should, upon the present motion, decide whether, when the writ of error issued, there was or was not such a judgment. We remit that question to the circuit court....