Camden Iron Works Co. v. Sater

• Decision Date: 08 June 1915
• Docket Number: 2735.
• Citation: 223 F. 611
• Parties: CAMDEN IRON WORKS CO. et al. v. SATER, District Judge.
• Court: U.S. Court of Appeals — Sixth Circuit

223 F. 611

CAMDEN IRON WORKS CO. et al. v. SATER, District Judge.

No. 2735.

United States Court of Appeals, Sixth Circuit.

June 8, 1915

C. D Robertson, of Cincinnati, Ohio, for petitioner.

Constant Southworth, of Cincinnati, Ohio, for respondent.

Before KNAPPEN and DENISON, Circuit Judges, and COCHRAN, District judge.

PER CURIAM.

Petition for writ of mandamus directing respondent to approve and settle bill of exceptions in the case of Camden Iron Works v City of Cincinnati. Respondent's reasons, given in his answer, for not approving and signing a bill of exceptions are, broadly stated, first, that no completed bill ready for approval and signature was ever presented to him; second that respondent had lost jurisdiction to sign and settle the bill, because the time therefor had expired; and, third that, if respondent still had discretionary power to extend the time, it ought not to be exercised because of petitioner's lack of diligence in preparing the bill.

The question of jurisdiction arises in this way: Judgment was entered September 11, 1914, and 60 days given plaintiff for preparing bill of exceptions and assignment of errors and filing the same for the consideration of the court. November 9th another extension of 10 days was given. On November 18th or 19th respondent signed an extension for 15 days and mailed it to petitioner's counsel, who received it on November 19th, but did not file it with the clerk of the court until November 21st. Three days later defendant filed a motion to vacate the order of extension on the ground (so far as now material) that it was filed two days late and that the court had no jurisdiction to make the extension or to sign a bill of exceptions. This motion was entertained by the court, but was not decided until December 21st. Meanwhile, on December 11th, defendant filed objections and proposed amendments to the bill of exceptions tendered; its objections expressly stating that its motion of November 24th was not waived. On the next day plaintiff's counsel presented to respondent a proposed bill, stating, however, that certain exhibits had not been made part thereof, and that a controversy existed to some extent between opposing counsel regarding the contents of the bill. Respondent declined at the time to grant a hearing on the bill, for the reason that he had not decided the motion of November 24th, and because of defendant's denial of respondent's right to allow and sign a bill. At this time plaintiff's counsel presented draft of an order for filing the extension order in question nunc pro tunc as of November 19th, instead of November 21st, and orally requested its entry, which respondent refused. On December 15th hearing was had, presumably including the motion of November 24th and the question generally of respondent's jurisdiction to settle the bill, as well as the propriety of the bill as tendered. On December 21st respondent denied the application to allow and sign the bill, and in effect sustained defendant's motion of November 24th and its contentions generally. He also announced, in his written opinion, a denial of plaintiff's nunc pro tunc order, and on the same day lodged with the clerk of the court plaintiff's proposed entry, with respondent's refusal indorsed thereon. The petition for mandamus followed.

We think respondent did not lose jurisdiction to settle and sign a bill of exceptions. While the judgment was entered at the February term, and jurisdiction to settle bill of exceptions would, unless under extraordinary circumstances, be lost by the expiration of that term, unless control was in some way reserved (Morse v. Anderson, 150 U.S. 156, 14 Sup.Ct. 43, 37 L.Ed. 1037; Jennings v. Railroad Co., 218 U.S. 255, 257, 31 Sup.Ct. 1, 54 L.Ed. 1031), yet the extension of 60 days embraced in the judgment entry ipso facto carried the control over the bill of exceptions into the October term. Jurisdiction was clearly not lost by the 2 days' delay in entering the extension order of November 19th. The order was seasonably made, and there was no unconscionable delay in filing. The only substantial question, so far as jurisdiction is concerned, was whether it should date from November 19th or November 21st, and thus whether it would expire on December 4th or December 6th. Control over the settlement of bill having been carried into the October term,...