Burget v. Robinson

• Decision Date: 01 May 1903
• Docket Number: 404.
• Citation: 123 F. 262
• Parties: BURGET v. ROBINSON.
• Court: U.S. Court of Appeals — First Circuit

123 F. 262

BURGET v. ROBINSON.

No. 404.

United States Court of Appeals, First Circuit.

May 1, 1903

John W Corcoran, William B. Sullivan, and Crosby & Noxon, for plaintiff in error.

Stiles W. Burr and John W. Saxe, for defendant in error.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

PUTNAM Circuit Judge.

The particular matter before us is a petition for rehearing which we gave the plaintiff in error special leave to file on February 4, 1903. By our direction, both parties have filed briefs in reference thereto, and the matter is now before us so far as we have any jurisdiction over the same. The judgment below was against the plaintiff in error, who was the defendant below. That judgment was affirmed by us on January 24, 1902 (51 C.C.A. 488, 113 F. 669), which was at the October, 1901, term of this court. On October 20, 1902 which was after the close of our October term, 1901, the plaintiff presented to the Supreme Court a petition for a writ of certiorari, and on January 19, 1903, that court denied the petition. The same day that court handed down an opinion in Hale v. Allison, 188 U.S. 56, 23 Sup.Ct 244, 47 L.Ed.--, the effect of which was to overrule some of the conclusions of law which this court reached according to its opinion passed down in Hale v. Hardon on May 31 1899, and reported in 37 C.C.A. 240, 95 F. 747. Our opinion in the present case, passed down on January 24, 1902, contained the following expression:

'With the exception of a single particular, the case involves questions disposed of by us in Hale v. Hardon, 37 C.C.A. 240, 95 F. 747, and is determined by it.'

Notwithstanding the plaintiff in error presented to the Supreme Court its petition for certiorari, and the same was held by that court for three months, and was then denied on the same day that it passed down its conclusions in Hale v. Allison, he insists that we have pronounced, in the words which we have cited from our opinion, that the question involved on this writ of error is exactly the same as that decided in Hale v. Hardon, so that, although his petition for certiorari was denied, yet the Supreme Court, by its decision in Hale v. Allison, has in effect determined that the judgment below against him should have been reversed; and he therefore asks us, on this petition for rehearing, to reopen the case.

The first difficulty comes from the fact that our judgment was entered at the October term, 1901, while this petition was not presented until the October term, 1902. The rule of this court (rule 29), so far as anything here is concerned, is substantially the same as the corresponding rule of the Supreme Court, and reads as follows:

'A petition for a rehearing after judgment may be filed at the term at which the judgment is entered, and within one calendar month after such entry, and not later, unless by leave granted during the term.' 31 C.C.A. lix, 90 F. lix.

The rule also provides for the contingency of a judgment being entered within less than one month before the term adjourns, in which event the petition for rehearing may be filed within the month after the entry of judgment, and with the same effect after the term as though filed before adjournment.

For reasons which justified it, on March 13, 1902, which was during our October term, 1901, an order was entered staying the mandate, and, on May 22, 1902, which was still during our October term, 1901, the defendant having made a motion that a mandate issue, a supersedeas bond was given by our order, and thereupon mandate was again stayed, each time indefinitely. On January 21, 1903, a copy of the order of the Supreme Court denying the petition for certiorari was filed with us, and on the next day a motion for a mandate was presented. On February 4, 1903, as we have already said, this petition for rehearing was filed by our leave, and the order made in reference to the briefs which we have already referred to. It is not necessary to state, but we will state, that our granting leave to file the petition foreclosed no question whatever, and was not intended to.

The first question is whether, under rule 29, in connection with the ordinary rules of law, we have any power to grant this petition. This question divides into two-- one of which is whether we are bound by the letter of the rule to the effect that such a petition should have been presented at the October term, 1901, and could not be filed later, because no leave therefor was granted during that term; and the other is whether, with or without our rules, we have any power to receive this petition at a term subsequent to that at which the judgment was entered.

The requirement that such a petition should be presented during the term at which the judgment was rendered is entirely for the protection of the court. So far as the bar is concerned, it is only a caution as to the necessity of filing a petition during the term at which the judgment was rendered in order to be clearly within one's rights. Being for the protection of the court, clearly it can be waived by it when justice requires. United States v. Breitling, 20 How, 252, 254, 15 L.Ed. 900. That justice requires we should not unnecessarily attempt to shut out the plaintiff in error by any mere arbitrary rule, if he is right in his position as to the effect of the proceedings in the Supreme Court, is too clear to need observation.

The other branch of the question is also easily disposed of by the effect of our orders staying the mandate. These held the case so far under our hands as to enable us to make such other orders from time to time as justice might require and the law permit, even after the term at which the judgment was entered. Unless this be so, our orders staying mandates would, in the majority of cases where entered, be futile; and the same would be true as to that portion of our rule 32 (31 C.C.A.lx, 90 F. lix, which frequently delays a mandate for a considerable period after the term at which a judgment was entered has adjourned.

While we understand that the practice of the Supreme Court is in harmony with our observations, yet no formal decision pro or con on this particular issue has been brought to our attention. It is true that court has apparently, in the most peremptory language, reiterated that it has no power over a case after the term at which judgment was rendered, and no power to entertain a petition for a rehearing unless presented at that term. Hudson v. Guestier, 7 Cranch, 1, 3 L.Ed. 249; Ex parte Sibbald, 12 Et. 488, 492, 9 L.Ed. 1167; Rice v. Railroad Company, 21 How. 82, 16 L.Ed. 31; Brooks v. Railroad Company, 102 U.S. 107, 26 L.Ed. 91; Hickman v. Ft. Scott, 141 U.S. 415, 419, 12 Sup.Ct. 9, 35 L.Ed. 775; Virginia v. Tennessee, 158 U.S. 267, 271, 15 Sup.Ct. 818, 39 L.Ed. 976. Nevertheless, there are other expressions, as in Browder v. McArthur, 7 Wheat. 58, 5 L.Ed. 397, where it is merely said that it is too late to grant a rehearing after a cause had been remitted to the court below. Of course, all rules stated so broadly are subject to certain limitations and qualifications, and in none of the cases cited did the Supreme Court have occasion to consider the effect of an order staying a mandate, or other similar order. Browder v. McArthur is a notable example of this fact, because, in Bank v. Tennessee, 163 U.S. 416, 426, 16 Sup.Ct. 1113, 41 L.Ed. 211, as the court clearly perceived that it had made an error in its judgment, although the judgment was that of the court, and a mandate had already issued, it was recalled, and the judgment modified. It is also fully settled that there is a general exception to all these rules, where there is a mere error on the part of the clerk, and sometimes where it is plain that the formal judgment was not in fact the judgment which the court intended to enter; and the same as to all similar proceedings, which, in the modern practice, have taken the place of the writ of error coram nobis. We are also of the opinion that there is a like exception in all cases where the court has expressly stayed the mandate, as in the case at bar. This proposition runs in line with the practice by virtue of which a bill of exceptions may be allowed after the term expires at which the judgment was rendered, if there is any indication that the court, by either special or general order, or in any other way, has reserved the right so to do.

Notwithstanding, under the statute, only a transcript of the record comes up, by theory the record itself is in this court, and remains here until a mandate issues. The decisions in Jugiro v. Brush, 140 U.S. 291, 11 Sup.Ct. 770, 35 L.Ed. 510, and in the cases that have followed it, are not inconsistent herewith, because it will be perceived by turning to pages 295 and 296, 140 U.S., 11 Sup.Ct. 770, 35 L.Ed. 510, that the court rested its conclusions on the specific language of the habeas corpus act. The theory of the law with reference to the custody of the record, after a writ of error has been perfected, was thus stated by us in Jewett v. United States, 41 C.C.A. 88, 100 F. 832, 835, 53 L.R.A. 568. In Sampaye v. De Payba, 5 Taunt. 83, Gibbs, afterwards Chief Justice, speaking in the common pleas, from which a writ of error had been taken out to the King's Bench, used emphatic language on this point, saying:

'As soon as the writ of error has operated, the record, though it remain in this court, is mere paper and pack thread. It is as much destroyed as if thrown into the fire.'

The matter had been previously and more fully explained to the same effect by Lord Mansfield in Vicars v. Haydon Cowp. 841, 843. In that case an application had been made to the Irish court, from which there had been error to the King's Bench, for leave to amend the...