Butt v. United States

• Decision Date: 05 January 1904
• Parties: BUTT v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

126 F. 794

BUTT v. UNITED STATES.

United States Circuit Court, N.D. West Virginia.

January 5, 1904

JACKSON District Judge.

The application of the United States, by Reese Blizzard, the United States District Attorney for this district, and representing the Attorney General of the United States, for appeal in this case is refused.

The decree in this case was entered on the 2d day of May, 1903 and the term of the court at which this decree was pronounced was ended on the second Tuesday in June, the commencement of the succeeding term. No application was made to the court for an appeal before the end of the regular term of the court at which the decree was pronounced. The provisions of section 11 of the act of March 3, 1891, c. 517, 26 Stat. 829 (U.S. Comp St. 1901, p. 552), creating the Circuit Courts of Appeals provides that no appeal shall be taken to that court except taken or sued within six months expired not later than the 2d day of November, 1903, and for this reason, under the act of Congress, the court feels constrained to refuse any application for an appeal.

Where an appeal is not taken out, or writ of error sued out, within the prescribed time, they will be dismissed, unless there is some saving in the statute allowing an appeal. In the section under consideration there is no saving. This principle of law is recognized by a long list of authorities in both federal and state courts. Volume 2, Cyclopedia of Law & Procedure, pp. 803, 804. In the case of Whitsitt v. Union Depot & Railroad Company, 122 U.S. 363, 7 Sup.Ct. 1248, 30 L.Ed. 1150, the court decided, Chief Justice Waite delivering the opinion of the court, that, 'unless a writ of error or the appeal is taken within the time prescribed by the statute, after the entry of the judgment, decree, or order, an appeal or writ of error would be too late. ' In the case of Coulliette v. Thompson et al., 50 F. 787, 1 C.C.A. 675, an appeal taken to the Circuit Court of Appeals for the Fifth Circuit the court held that 'an appeal to the Circuit Court of Appeals, more than six months after entry of the decree, must be dismissed under the judiciary act of 1891, section 11. ' This is the construction, by that court, of the act under which the appeal in this case is proposed to be taken. In the case of Threadgill v. Platt et al. (C.C.) 71 F. 1, a writ of error was sued out to review a judgment at law in the Circuit Court of Appeals sitting for the Fourth Circuit, and the court expressly held, speaking through Simonton, Circuit Judge, that 'a judge, in...