Chamberlin v. Peoria, D. & E. Ry. Co.

• Decision Date: 06 May 1902
• Docket Number: 719.
• Citation: 118 F. 32
• Parties: CHAMBERLIN v. PEORIA, D. & E. RY. CO. et al.
• Court: U.S. Court of Appeals — Seventh Circuit

118 F. 32

CHAMBERLIN v. PEORIA, D. & E. RY. CO. et al.

No. 719.

United States Court of Appeals, Seventh Circuit.

May 6, 1902

Wm. W Baldwin and Edward B. Whitney, for appellant.

J. M Dickinson and Blewett Lee, for appellees.

Before JENKINS, GROSSCUP, and BAKER, Circuit Judges.

BAKER Circuit Judge.

On March 2, 1899, appellant filed his bill to review a decree entered on March 30, 1897. The sole ground of review was the alleged want of jurisdiction apparent upon the face of the record. Appellees demurred for the reason, among others, that the bill was not filed within the time limited for the prosecution of an appeal from the decree sought to be reviewed. The demurrers were properly certified to by counsel, but were not supported by the affidavits of appellees as required by equity rule 31. The court overruled appellant's motion to strike the demurrers from the files. The correctness of the court's ruling in sustaining the demurrers is questioned by this appeal.

It is well settled that a bill of review for error of law apparent upon the face of the record must be brought within the time limited by statute for taking an appeal from the decree sought to be reviewed. Thomas v. Harvie's Heirs, 10 Wheat. 146, 6 L.Ed. 287; Ensminger v. Powers, 108 U.S. 292, 2 Sup.Ct. 643, 27 L.Ed. 732; Central Trust Co v. Grant Locomotive Works, 135 U.S. 207, 227, 10 Sup.Ct 736, 34 L.Ed. 97. If an appeal from the original decree had been within the jurisdiction of this court, it would have had to be taken within six months. Section 11, Judiciary Act March 3, 1891. Since the only alleged error on which an appeal could have been taken related to the jurisdiction of the circuit court, an appeal, according to section 5 of that act, was interpreted by the supreme court, could have been taken to the supreme court at any time within two years only on condition that the certification required by section 5 had been made during the term at which the decree was entered. U.S. V. Jahn, 155 U.S. 109, 15 Sup.Ct. 39, 39 L.Ed. 87; Colvin v. City of Jacksonville, 158 U.S. 456, 15 Sup.Ct. 866, 39 L.Ed. 1053; The Bayonne, 159 U.S. 687, 16 Sup.Ct. 185, 49 L.Ed. 305; Merritt v. Bowdoin College, 169 U.S. 551, 18 Sup.Ct. 415, 42 L.Ed. 850. The term at which the original decree was entered came to an end long before the bill of review was filed. No certificate of the jurisdictional question was ever made. If the power of the circuit court to make the certificate had departed before the bill of review was filed, no appeal would be entertained by the supreme court; and, consequently, the bill of review would not lie. Reed v. Stanley, 38 C.C.A. 331, 97 F. 521.

But appellant insists that the right of the circuit court to certify the question of jurisdiction...