Clarke v. Eureka County Bank
| Decision Date | 18 July 1904 |
| Docket Number | 728. |
| Citation | 131 F. 145 |
| Parties | CLARKE v. EUREKA COUNTY BANK. |
| Court | U.S. District Court — District of Nevada |
Alfred Chartz and N. Soderberg, for plaintiff.
Cheney Massey & Smith, for defendant.
The record in this case shows that the judgment was rendered July 6, 1903, in favor of plaintiff for the sum of $11,251.75 that thereafter stipulations were filed by the respective parties, and orders made by the court in pursuance thereof extending the time for plaintiff to file and serve notice of motion for new trial and bill of exceptions, and for a stay of execution. The first of these stipulations was filed January 14, 1903, the second was filed July 31st, and the third August 31st, extending the time up to and including the 21st day of September, 1903. The notice of motion for new trial was filed August 31, 1903, and thereafter set for hearing on September 21, 1903, then overruled, and on the same day this court allowed the writ of error to the Circuit Court of Appeals upon the defendant giving a bond in the sum of $11,500 to operate as a supersedeas bond. It further appears that in due course of time the case was regularly placed upon the calendar of the Circuit Court of Appeals, and on May 2, 1904, the judgment of this court was affirmed. A petition for rehearing was filed, and on June 3, 1904 denied. Thereafter the plaintiff in error, defendant in the court below, moved the Circuit Court of Appeals for, and obtained, an order staying the mandate herein until the Supreme Court pass upon an application for a writ of certiorari to review the judgment herein rendered upon the filing of an additional bond in the sum of $1,000. On July 1, 104, the plaintiff moved this court 'to vacate and set aside the order herein made and entered in said cause on the 21st day of September, 1903, granting the supersedeas and stay of execution and ordering that upon the giving of a bond by defendant in the sum of $11,500 said bond should operate as a supersedeas bond, and that execution issue herein upon the judgment made and entered by said court on the 6th day of July, 1093, in favor of plaintiff and against said defendant.'
1. It is claimed that the writ of error was not sued out within 60 days from the entry of judgment, in accordance with the provisions of section 1007, Rev.St. (U.S.Comp.St. 1901, p 714), 60 days having elapsed since the judgment was originally entered. This contention is without merit. The decisions of the Supreme Court are to...
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