Alexander v. United States

• Decision Date: 17 July 1893
• Docket Number: 53.
• Citation: 57 F. 828
• Parties: ALEXANDER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

57 F. 828

ALEXANDER et al. v. UNITED STATES.

No. 53.

United States Court of Appeals, Ninth Circuit.

July 17, 1893

Rothchild & Ach, for plaintiffs in error.

Fremont Wood, for the United States.

Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge.

An action was brought in 1886 in the district court of the first judicial district of the territory of Idaho to recover from the sureties on the bond of one Hibbs, a postmaster, $10,000 the penalty of the bond. On November 28, 1888, judgment was rendered for that amount upon the verdict of the jury in the case. On December 1, 1888, notice was given of the intention of defendants to move for a new trial, and subsequently, in accordance with the practice of that court, a statement of the case was settled, with exhibits to be used on the motion for new trial. On April 15, 1889, the motion was submitted to Judge L. L. Logan, of that court, and was by him taken under advisement until November 27th following, when he denied the motion. This decision on the motion was considered void, for the reason that, at the time it was rendered, a successor to Judge Logan had been appointed and qualified, and had assumed the duties of the office. On July 3, 1890, Idaho was admitted into the Union as a state, and by the act of admission this cause was transferred to the district court of the United States for the district of Idaho. On May 19, 1891 application was made to that court for an order setting aside the decision of Judge Logan denying the motion for new trial. On May 25th the application was granted, and on December 14 1891, the motion for new trial was overruled. On April 2 1892, the writ of error and citation were issued by which the record was brought into this court.

It is contended on behalf of the defendant in error that the writ must be dismissed, for the reason that a writ of error will not lie to review the decision of a district court of the United States granting or overruling a motion for a new trial, and for the further reason that the judgment of the territorial court sought to be reviewed was rendered more than six months prior to the time of suing out the writ.

Upon the first point the law is well settled. The decisions of the circuit and district courts upon motion for a new trial are not reviewable. It is held that the motion for a new trial is designed only to invoke the judgment of the trial court upon the alleged errors set out in the motion, and that its office and function are limited to that court. Doswell v. De La Lanza, 20 How. 29; Railway Co. v. Struble, 109 U.S. 381, 3 S.Ct. 270; Missouri Pac. Ry. Co. v. Chicago & A. R. Co., 132 U.S. 191, 10 S.Ct. 65; Ayers v. Watson, 137 U.S. 584, 11 S.Ct. 201; Fishburn v. Railway Co., 137 U.S. 60, 11 S.Ct. 8. And the rule is applicable to the circuit court of appeals. Railway Co. v. Howard, 1 C. C. A. 229, 49 F. 206; McClellan v. Pyeatt, 1 C. C. A. 613, 50 F. 688.

But it is contended that, inasmuch as, by the laws of Idaho in force at the time the judgment was rendered therein, and at the time the motion for a new trial was filed, an appeal would lie to the supreme court of the territory, the right of appeal from the decision on that motion is still conserved to the plaintiffs in error; and they point to the case of Bates v. Payson, 4 Dill. 265, as sustaining that view. We do not so understand the doctrine of that decision. That was a case arising under the act admitting Colorado into the Union, and declaring the federal court to be the successor of the supreme court of the territory as to certain cases, with power to proceed therein 'in due course of law.' The question arose whether an action at law which had been taken by appeal to the territorial supreme court, and thence transferred by the act to the circuit court of the United States, could be properly regarded as pending in the latter court, since, by the practice of that court, no action at law could be taken thereto by appeal, but must needs be taken by a writ of error. The court decided, in effect, that, inasmuch as the cause was pending in the territorial supreme court, the circuit court would not consider the method of procedure by which it was taken there, but would proceed as that court would have proceeded if it had retained the case. That decision does not affect the question of the method of procedure in the circuit court. There can be no doubt that a cause removed or transferred to a circuit or district court of the United States on the admission of a territory into the Union must, from the time of transfer, be subject to the rules of practice and procedure of the court to which it is so removed, and the provision of the statute that the latter court shall proceed 'in due course of law' means no more than this. It is clear, therefore, that no appeal or writ of error would lie to this court from the decision of the district court of Idaho overruling the motion for a new trial.

But upon inspecting the writ of error in this case, it will be seen that it does not purport to be brought to review the decision on the motion for a new trial. By its terms it is equally applicable to the judgment upon the verdict of the jury, and the question arises whether the six months within which to sue out the writ, as limited by section 11 of the act creating the circuit court of appeals, had expired on April 2, 1892. We are of the opinion that it had not, and that the judgment of the territorial court was suspended by virtue of the motion for a new trial, which had been filed in due time, and which had been entertained by the court, and that it was so suspended until the final disposition of that motion. In Brockett v. Brockett, 2 How. 238, it was held that a petition for a rehearing filed during the term, and actually entertained by the court, suspended the operation of a decree in equity until the petition was disposed of. In Cambuston v. U. S., 95 U.S. 287, by implication, the same doctrine was held; but it was decided in that case that, if the motion for a new trial is not filed during the term when judgment was rendered, the time for taking an appeal runs from the entry of the judgment. In Railway Co. v. Murphy, 111 U.S. 488, 4 S.Ct. 497, a judgment of the supreme court of the state of Texas was sought to be reviewed by writ of error. Some six months after the entry of the judgment in the supreme court of Texas a motion for rehearing was entertained and decided by that court. It was held that the time limited for writ of error to the supreme court of the United States did not begin to run until the petition for rehearing was disposed of. Similar decisions have been rendered in the circuit courts in Rutherford v. Insurance Co., 1 F. 456; Brown v. Evans, 8 Sawy. 502, 18 F. 56. There is nothing contained in the language of the act regulating writs...