City of Manning v. German Ins. Co.

• Decision Date: 11 March 1901
• Docket Number: 1,464.
• Citation: City of Manning v. German Ins. Co., 107 F. 52 (8th Cir. 1901)
• Parties: CITY OF MANNING v. GERMAN INS. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

107 F. 52

CITY OF MANNING v. GERMAN INS. CO.

No. 1,464.

United States Court of Appeals, Eighth Circuit.

March 11, 1901

Syllabus by the Court.

An order granting or refusing a new trial, which the court has the jurisdiction to make, is discretionary with the trial court, and cannot be reviewed by appeal or writ of error in the federal courts.

But the question whether or not the trial court has the jurisdiction to make an order granting or refusing a new trial is reviewable in the federal courts by an appeal or writ of error challenging such order.

An order for a new trial, when the application for it is made in due time, is the proper remedy for the incapacity of the judge who tried the case to settle and sign the bill of exceptions.

Judgments at law cannot be vacated or substantially modified by the courts which rendered them subsequent to the expiration of the terms at which they were entered, in the absence of motions or proceedings for that purpose during such terms and the only exceptions to this rule are that clerical mistakes, and such mistakes of fact not put in issue or passed upon as may be corrected by writ of error coram vobis or by motion in lien of that writ, and mistakes in the dismissal of a cause, may be corrected after the expiration of the terms.

Section 914 of the federal statutes was not intended to and did not conform the power or the practice of the federal courts to those of the state courts in matters relating to bills of exceptions, motions for new trials, and methods of review of their judgments.

The writ of error in this case challenges an order granting a new trial of an action brought by the German Insurance Company the defendant in error, hereinafter called the 'plaintiff,' against the city of Manning, the plaintiff in error, hereinafter called the 'defendant,' in which a judgment was rendered in favor of the defendant on August 8, 1899, during the May term of the court below. The May term of that court expired on November 20, 1899, and during that term no motion, or notice of motion, or proceedings towards a motion for a new trial of the action were made or taken. The following November term of that court commenced on November 20, 1899, and during that term, and on January 13, 1900, the plaintiff moved for the first time for a new trial of the action, and on the first day of the May term, 1900, that motion was granted. The motion for the new trial was granted solely because the plaintiff had failed to perfect a bill of exceptions under this state of facts: On August 8, 1899, when the judgment was rendered, Judge Woolson, who tried the case, allowed the plaintiff 90 days in which to make a bill of exceptions. There was a dispute between the parties below whether or not this extension of 90 days was subsequently changed by order of the court to 180 days. But Judge Shiras, who heard the motion for a new trial, and found the facts upon which his order was made, decided that there was no such authorized change, and that the time for preparing the bill of exceptions expired on November 7, 1899, during the May term, 1899, of the circuit court. About the 23d day of October, 1899, counsel for defendant wrote to the counsel for plaintiff concerning an extension of time for preparing a bill of exceptions, and he replied that he had no objection to the extension of the time, but that, if counsel for the defendant desired such extension, he requested him to apply for it at once, so that there could be no question in the matter. Defendant's counsel made no application to any one for an extension of time, and it never was extended. On November 7, 1899, when the time to prepare the bill of exceptions expired, Judge Woolson, who tried the case, was so ill that he was unable to attend to his official duties, and he died on December 4, 1899. Judge Shiras, who held the November, 1899, and May, 1900, terms of the court, granted the motion for a new trial because no bill of exceptions had been settled. The order granting the new trial is attacked on the ground that the circuit court had no power to make such an order, and thereby to set aside and vacate its judgment, after the expiration of the term at which it was rendered, in the absence of any motion or notice of motion for that purpose during that term.

B. I. Salinger (A. B. Cummins, on the brief), for plaintiff in error.

George F. Henry (James G. Berryhill, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

An order granting a new trial in an action sets aside and renders void any former judgment therein. Rev. St. Sec. 987. An order granting or refusing a new trial, which the court has the jurisdiction or power to make, is discretionary, and cannot be reviewed by writ of error or appeal in the federal courts. Railroad Co. v. Howard, 4 U.S.App. 202, 1 C.C.A. 229, 49 F. 206; McClellan v. Pyeatt, 4 U.S.App. 319, 1 C.C.A. 613, 50 F. 686; Village of Alexandria v. Stabler, 4 U.S.App. 324, 1 C.C.A. 616, 50 F. 689; Mining Co. v. Fullerton, 19 U.S.App. 190, 7 C.C.A. 340, 58 F. 521; City of Lincoln v. Sun Vapor Street-Light Co., 19 U.S.App. 431, 8 C.C.A. 253, 59 F. 756; Criner v. Matthews, 32 U.S.App. 405, 15 C.C.A. 93, 67 F. 945; Condran's Adm'x v. Railway Co., 32 U.S.App. 182, 14 C.C.A. 506, 67 F. 522. But the question whether or not the court had the jurisdiction or power to make an order granting or refusing a new trial and avoiding a former judgment is always reviewable in the federal courts by a writ of error or an appeal challenging the order, because it goes to the effect and finality of the judgment itself. Phillips v. Negley, 117 U.S. 665, 671, 675, 678, 6 Sup.Ct. 901, 29 L.Ed. 1013.

Two questions are urged upon our consideration. The first is whether or not the court had the power to grant a new trial and avoid the judgment after the expiration of the term at which it was rendered, and the second is whether or not that power was wisely exercised upon the proofs presented in this case. The second question is not open for consideration here, because, if the court had the power to grant the motion, the exercise of that power was discretionary, and now reviewable in this court. Moreover, it is conceded, and that is the extent to which the authorities cited for the defendant go, that, when the motion or application is made at the term at which the judgment is rendered, or within the time fixed by the rules of the court, an order granting a new trial is the proper remedy for the failure of the defeated party to obtain his bill of exceptions on account of the illness or incapacity of the judge who tried the case. Hume v. Bowie, 148 U.S. 245, 255, 13 Sup.Ct. 582, 37 L.Ed. 438; Nind v. Arthur, 7 Dowl.& L. 252; Newton v. Boodle, 3 C.B. 795, 800; Benett v. Steamboat Co., 16 C.B. 28; Borrowscale v. Bosworth, 98 Mass. 34, 36; Malony v. Adsit, 20 Sup.Ct. 115, 44 L.Ed. 163. The only question for our consideration, therefore, is whether or not the court below had the jurisdiction to grant the motion for the new trial and to avoid the judgment of August 8, 1899, after the expiration of the term at which it was rendered, in the absence of any motion or notice of motion or other proceeding looking to its vacation during that term.

In Sibbald v. U.S., 12 Pet. 487, 491, 9 L.Ed. 1167, 1169, Mr. Justice Baldwin, delivering the opinion of the supreme court, said:

'No principle is better settled, or of more universal application, than that no court can reverse or annul its own final decrees or judgments, for errors of fact or law, after the term in which they have been rendered, unless for clerical mistakes (Cameron v. McRoberts, 3 Wheat. 591, 4 L.Ed. 467; Bank v. Wistar, 3 Pet. 431, 7 L.Ed. 731); or to reinstate a cause dismissed by mistake (The Palmyra, 12 Wheat. 10, 6 L.Ed. 531); from which it follows that no change or modification can be made, which may substantially vary or affect it in any material thing. Bills of review in cases of equity, and writs of error coram vobis, at law, are exceptions which cannot affect the present motion.'

In Bronson v. Schulten, 104 U.S. 410, 415, 26 L.Ed. 797, 799, Mr. Justice Miller, in delivering the opinion of the supreme court, after declaring it to be a general rule that judgments and decrees and orders of the courts are under their control, and may be set aside, vacated, modified, or annulled during the term at which they are pronounced, proceeded to say:

'But it is a rule equally well established that, after the term has ended, all final judgments and decrees of the court pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify, or correct them; and, if errors exist, they can only be corrected by such proceeding by a writ of error or appeal as may be allowed in a court which, by law, can review the decision. So strongly has this principle been upheld by this court, that, while realizing that there is no court which can review its decisions, it has invariably refused all applications for rehearing made after the adjournment of the court for the term at which the judgment was rendered. And this is placed upon the ground that the case has passed beyond the control of the court. Brooks v. Railroad Co., 102 U.S. 107, 26 L.Ed. 91; Public Schools v. Walker, 9 Wall. 603, 19 L.Ed. 605; Brown v. Aspden, 14 How. 25, 14 L.Ed. 311; Cameron v. McRoberts, 3 Wheat. 591, 4 L.Ed. 467; Sibbald v. U.S., 12 Pet. 488, 9 L.Ed. 1167; U.S. v. The Glamorgan, 2 Curt. 236, Fed.Cas.No. 15,214; Bradford v. Patterson, 1 A.K.Marsh. 464; Ballard v. Davis, 3 J.J.Marsh. 656. * * * It is a profitless task to follow the research of counsel for the defendants in error through the numerous

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