Altenberg v. Grant

• Decision Date: 24 May 1897
• Docket Number: 466.
• Citation: 83 F. 980
• Parties: ALTENBERG et al. v. GRANT et al.
• Court: U.S. Court of Appeals — Sixth Circuit

83 F. 980

ALTENBERG et al. v. GRANT et al.

No. 466.

United States Court of Appeals, Sixth Circuit.

May 24, 1897

W. O Harris and Humphrey & Davie, for defendants in error.

Before TAFT and LURTON, Circuit Judges.

TAFT Circuit Judge.

The defendants in error, appearing for the purpose of the motion only, have made a motion to dismiss the writ of error in this case on the ground that the proceeding in error has not been perfected by the plaintiffs in error within the time required by law. The facts, as shown by the record, are as follows The action below was at law. The trial before the court and a jury resulted in a verdict for defendants on the 12th of November, 1895. Judgment was at once entered upon the verdict, and costs were awarded to defendants against plaintiffs. On November 15th following, plaintiffs filed a motion for a new trial. This motion was denied on December 17, 1895. On June 15, 1896, a writ of error was allowed and a bond was filed and approved. The writ of error was made returnable July 15, 1896, but was not in fact returned until July 16, 1896. A citation against all the defendants in error was signed by the judge at the circuit. It was returned June 30th, executed on only one of the defendants in error. The marshal gave as a reason for not serving the other defendant that the plaintiffs in error had made no deposit for costs. So the matter stood until February 27, 1897, when a new citation was issued, signed by a judge of this court, and was executed and returned March 27, 1897. Three grounds are urged for a dismissal of the writ of error. The first is that more than six months elapsed after the rendition of the judgment sought to be reviewed before the allowance of the writ of error. If the time for the writ of error began to run from the date of the judgment the contention is good. If, however, the period of limitation dates from the order denying the motion for a new trial, the writ of error was seasonably allowed. We have no doubt that the motion for a new trial suspends the running of the statute. In some states, judgment is withheld until the defeated party shall have had time to file a motion for a new trial, and, pending the hearing of the motion, judgment is never entered. In other states,-- and this is true in Kentucky,--judgment is entered upon the verdict at once, and motions for new trials are made always after judgment. It is certainly the understanding of the bar that, until the motion for a new trial has been disposed of, the judgment is not ripe for review; and it is the duty of this court, so far as the authorities will permit, to avoid a construction of the rules and statutes governing writs of error and appeals which would be a surprise to practitioners and effect undeserved hardships. We think the decisions of the supreme court justify us in holding that a motion for a new trial like a petition for rehearing filed during the term in which the judgment is rendered postpones the running of the period of limitation until the motion is disposed of. Memphis v Brown, 94 U.S. 715, 717; Railway Co. v. Murphy, 111 U.S. 488, 4 Sup.Ct. 497; Brockett v. Brockett, 2 How. 238; Slaughter-House Cases, 10 Wall. 289. The question...