Babler v. United States

• Decision Date: 21 July 1943
• Docket Number: No. 12532.,12532.
• Parties: BABLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

137 F.2d 98 (1943)

BABLER v. UNITED STATES.

No. 12532.

Circuit Court of Appeals, Eighth Circuit.

July 21, 1943.

Jean Paul Bradshaw, of Lebanon, Mo. (Claude T. Wood, of Richland, Mo., and Bradshaw & Fields and Robert C. Fields, all of Lebanon, Mo., on the brief), for appellant.

Dwight D. Doty, Atty., Department of Justice, of Washington, D. C. (Norman M. Littell, Asst. Atty. Gen., Frank M. Mayfield, Sp. Atty., Department of Justice, and Vernon L. Wilkinson, Atty., Department of Justice, both of Washington, D. C., on the brief), for appellee.

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

This case and the case of Mallette v. United States, 137 F.2d 95, just decided by this Court, are companion cases, both involving the condemnation of Missouri lands by the United States for Fort Leonard Wood, a military reservation. In this case, as in the Mallette case, a jury trial of the issue of value or compensation was denied, and the award of commissioners, which had been excepted to by the appellant, was confirmed by the District Court. Both sides now assert that this was error, and we have ruled in the Mallette case that it was.

The appellant asks that, in reversing the judgment confirming the commissioners' award, we determine the sufficiency of the evidence to support the finding of the District Court that, at the time the appellant acquired the land in suit, it was within the boundaries of the proposed military reservation, and that therefore he might not have compensation for any enhancement in the value of the land caused by the creation of the reservation.

The Government asks that the appeal be dismissed for want of jurisdiction, on the ground that it was taken too late. The judgment appealed from was entered July 17, 1942. A motion for a new trial was filed July 27, 1942, and was considered on its merits and denied September 8, 1942. A second motion for a new trial, made on November 28, 1942, with leave of court, was denied on that day. Notice of appeal was given December 8, 1942. If the time for appeal ran from July 17, 1942, this Court would be without jurisdiction, since 28 U.S.C.A. § 230 allows only three months from the entry of judgment within which to appeal. If, however, the time to appeal was suspended during the pendency of the first motion for a new trial, the appeal was taken in time. The Government argues that, since the acts of Congress under which this proceeding was brought require conformity with state practice, and since § 1171, R.S.Missouri 1939, Mo.R.S.A. § 1171, allows only four days for the making of a motion for a new trial, the motion made by the appellant ten days after the entry of judgment was untimely, and therefore did not have the effect of suspending the time for appeal.

A motion for a new trial or for a rehearing if "duly and seasonably filed" suspends the time for taking an appeal, and the time runs from the date of the denial of the motion. Morse v. United States, 270 U.S. 151, 153, 154, 59 S.Ct. 618, 83 L.Ed. 394, and cases cited. Assuming that the first motion for a new trial made by the appellant was six days late, we are of the opinion that it, nevertheless, was not unseasonably made and that it had the effect of suspending the time for appeal, first, because the court, at the commencement of the trial, expressed grave doubt as to whether the appellant was not entitled to a jury trial of the issue of compensation, and, in effect, invited the appellant, if dissatisfied with the result of the trial by the court, to renew his request for a jury determination by moving for a new trial; and, second, because the court, before the time for appeal had expired, entertained the motion for a new trial made July 27, 1942, and considered and denied it upon its merits. The judgment, while final in form on July 17, 1942, was, in effect, subject to an express reservation of jurisdiction to vacate it if the court was later convinced, on a motion for a new trial, that...