Bernard v. Lea

• Decision Date: 04 November 1913
• Docket Number: 1,171.
• Citation: 210 F. 583
• Parties: BERNARD v. LEA. In re AMERICAN FOUNDRY & SUPPLY CO.
• Court: U.S. Court of Appeals — Fourth Circuit

210 F. 583

BERNARD v. LEA.

In re AMERICAN FOUNDRY & SUPPLY CO.

No. 1,171.

United States Court of Appeals, Fourth Circuit.

November 4, 1913

T. J Harkins, of Asheville, N.C. (Harkins & Van Winkle, of Asheville, N.C., on the brief), for appellant.

James H. Merrimon, of Asheville, N.C., for appellee.

Before PRITCHARD, Circuit Judge, and WADDILL and CONNOR, District judges.

CONNOR District Judge.

Upon a motion lodged by appellee to dismiss or affirm the judgment the record discloses that the judge filed his decree on January 25, 1913. Immediately following his signature are the words:

'The trustee excepts to the foregoing decree and, in open court gives notice of his intention to appeal this matter to the United States Circuit Court of Appeals for the Fourth Circuit. Exceptions and appeal allowed, dated January 25, 1913. ' Signed by the judge.

No assignment of error was filed at that time. On January 29, 1913, the trustee presented to the judge a formal petition for appeal. In compliance with Rule 14, Sec. 7 (193 F. ix, 112 C.C.A. ix), it was properly omitted from the printed transcript. A memorandum, 'Petition for appeal, filed January 29, 1913. Citation dated Feby. 3, 1913. Service accepted Feby. 10, 1913,' is in the transcript as required by the rule. At the time of presenting the 'petition for appeal,' the trustee filed his 'assignments of error.' Appellee insists that the appeal was taken and allowed, on January 25, 1913. He invokes Rule 11 (193 F. vii, 112 C.C.A. vii), which requires that the plaintiff in error or appellant shall file, with his petition, an assignment of errors.

'That no writ of error or appeal shall be allowed until such assignment of error shall have been filed. * * * When this rule is not complied with, counsel will not be heard except at the request of the court; and errors not assigned according to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned. ' Rules, 193 F. v, vii, 112 C.C.A. v, vii.

Appellee further insists that the appeal having been prayed for and allowed, on January 25, 1913, the judge of the District Court was without jurisdiction or power to make orders, or do any act, in the cause. The learned counsel for appellee strongly stressed this position and cited authorities for its support. It is unquestionably true, as contended by him, that when an appeal has been taken, that is prayed for and allowed, the court is without jurisdiction to make further orders affecting the rights of the parties. Edmondson v. Bloomshire, 7 Wall. 306, 19 L.Ed. 91. It follows therefore that if the entry made by the judge, at the end of the decree of January 25, 1913, had the effect claimed by appellee, the action taken by the parties, and the judge, on January 29, 1913, was ineffectual for any purpose. The motion to dismiss, or to affirm, is based upon the assumption that filing the assignment of error, as required by rule 11 of this court, is jurisdictional and essential to taking an appeal. It must be conceded that cases may be found-- some of them are cited by the learned and industrious counsel-- which appear to, if they do not in fact, so hold. In Lockman v. Lang, 128 F. 279, 62 C.C.A. 550 (C.C.A. 8th Cir.), Judge Sanborn says that, when an appeal is prayed and allowed in open court, 'the prayer for reversal and the citation may be waived, but the assignment of errors is indispensable to the perfection of the appeal. ' He bases this conclusion upon section 997, Rev. Stat. (4 Fed.Stat.Anno.p. 605 (U.S. Comp. St. 1901, p. 712)), and Rule 11 (C.C.A.; Lloyd v. Chapman, 93 F. 599, 35 C.C.A. 474. It will be observed that the language of rule 11 of the Circuit Court of Appeals is the same as Rule 35 of the Supreme Court (32 S.Ct. xiii). Section 997, Rev. Stat. requires that:

'There shall be annexed to and returned with any writ of error for the removal of a cause * * * an authenticated transcript of the record, an assignment of errors, and a prayer for reversal, with a citation to the adverse party.'

This statute, it will be observed, does not prescribe the method of praying, the time for allowing, or making up the record upon a writ of error, and, as will be noticed later, makes no reference to appeals. They appear to be brought within its provisions by section 1012, R.S. (U.S. Comp. St. 1901, p. 716). It is found in the Judiciary Act of Sept. 24, 1789, c. 20, 1 Stat. 73. These matters were evidently left to be dealt with by the Supreme Court under its power to make rules of practice. In prosecuting and making up the record in writs of error, the provisions of section 997 should be complied with, but the order of procedure allowing the writ, or appeal, is not 'essential to the perfection of an appeal. ' The question involved in the motion of appellee was considered by Judge Sanborn in Simpson v. First National Bank, 129 F. 257, 63 C.C.A. 371. After quoting the words of the statute (section 997), with the language of section 1012 (4 Fed.Stat.Anno.p. 624) 'appeals' from the Circuit Courts and the District Courts ' * * * shall be subject to the same rules, regulations and restrictions as are, or may be, prescribed in law in cases of writs of error,' he says:

'The acts of Congress did not require the filing of an assignment of errors before the allowance of a writ of error or an appeal. This requirement rests upon Rule 11 of this court, which is the same, in terms and in effect, as Rule 34 (35) of the Supreme Court of the United States.'

The learned judge proceeds to state the reason why the assignments of error should accompany the petition for a writ of error-- they are manifestly correct and, upon slight reflection, will so impress the mind of a lawyer.

'It is not so in case of an appeal. The right to appeal is an absolute right granted to the defeated party by the acts of Congress. No court or judge has any jurisdiction or power to condition the allowance of an appeal upon his consideration or determination of the question whether or not the applicant presents alleged errors which form reasonable grounds for the review of the decision below. That question is reserved for the consideration of the appellate court exclusively. The petitioner has the same right to the allowance of his appeal, in the absence of error, or of the appearance of it, as when he presents the most conclusive reasons for the belief that the decision against him was erroneous. * * * The result is that the assignment of error is not required to be filed before an allowance of appeal, for the benefit or information of the court to whom the application for the allowance is made.'

He says that the only reason for requiring it to be filed at that time is that it may be made a part of the record for the information of opposing counsel and of the appellate court, 'and that object, is as well attained by filing it at any time before the security is approved and accepted as by filing it before the order is made, etc. ' In that case, on June 23, 1902, both parties prayed, in open court, for an appeal. Defendants, on August 15, 1902, filed their assignments of error. As both parties appealed, the plaintiffs, on August 20, 1902, filed their assignments of error. The question presented here, therefore, was fairly raised and decided in that case. The court refused to dismiss, or affirm, and decided the case on its merits. Brown v. McConnell, 124 U.S. 489, 8 Sup.Ct. 559, 31 L.Ed. 495. We call attention, without undertaking to reconcile the two decisions, to the disposition made of Lockman v. Lang, supra, which was an appeal. The court said:

'The assignments of errors in this case were not filed until the seventh day after the appeal was allowed, and under Rule 11 and the uniform decisions of this court the appeal must be dismissed.'

In that case the bankrupt also filed a petition for a writ of error, with assignments of error, and a bond. The petition was allowed by the judge; the Circuit Court of Appeals dismissed it, saying:

'A proceeding in bankruptcy is a proceeding in equity, and cannot be reviewed by a writ of error.'

The failure to note the distinction made by Judge Sanborn in Simpson v. Bank, supra, has caused some, either real or apparent, conflict in the decided cases. Eliminating pro hac vice the act of Congress (section 697, R.S.), the question, both in respect to appeals and writs of error, involves a construction of Rule 11 of the Circuit Court of Appeals. It is apparent, upon an analysis of the language of the rule, that a failure to file assignment of error in cases in which a writ of error is the prescribed statutory method of securing a review of the judgment below, or in an appeal, does not invalidate the writ, or appeal, or prevent the court, into which it is returnable, from acquiring jurisdiction. After prescribing the time at, and manner in, which error shall be assigned in 'an appeal or writ of error,' the rule provides that:

'When this is not done counsel will not be heard except at the request of the court; and errors not assigned according to this rule will be disregarded, but the court, at its option, may notice an obvious error.'

If the requirement that the assignment of error shall be filed before the writ of error is allowed is jurisdictional, by what authority does the court request counsel to argue any question presented by the record, or obtain 'the option to notice a plain error not assigned'? In School Dist. v. Hall, 106 U.S. 428, 1 Sup.Ct. 417, 27 L.Ed 237, the court refused to grant a motion to dismiss a writ of error because the assignment of errors was not annexed to, or returned with, the writ, as required by section 997, R.S., holding that the provisions of the statute were not jurisdictional. In Farrar v. Churchill, 135...