Darnell v. Illinois Cent R. Co.

• Decision Date: 03 June 1913
• Docket Number: 2,381.
• Citation: 206 F. 445
• Parties: DARNELL v. ILLINOIS CENT. R. CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

206 F. 445

DARNELL v. ILLINOIS CENT. R. CO. et al.

No. 2,381.

United States Court of Appeals, Sixth Circuit.

June 3, 1913

Jurisdiction of Circuit Courts of Appeals in general, see notes to Lau Ow Bew v. United States, 1 C.C.A. 6; United States Freehold Land & Emigration Co. v. Gallegos, 32 C.C.A. 475.)

In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.

Action at law by R. J. Darnell against the Illinois Central Railroad Company and the Yazoo & Mississippi Valley Railroad Company. Judgment for defendants, and plaintiff brings error. On motion to dismiss for want of jurisdiction. Motion sustained. H. D. Minor and C. N. Burch, both of Memphis, Tenn. (B. Lee and C. L. Sivley, both of Chicago, Ill., of counsel), for plaintiff in error.

T. K Riddick, of Memphis, Tenn., for defendants in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

DENISON Circuit Judge.

Plaintiff in error brought an action in the District Court to recover alleged excessive freight charges. On June 30, 1911, the court sustained a demurrer to his declaration. Conceiving that the question involved was one of jurisdiction, plaintiff took a writ of error returnable to the Supreme Court. That court decided that the record did not present a question of the jurisdiction of the District Court as a federal court and dismissed the writ of error. Darnell v Railroad, 225 U.S. 243, 32 Sup.Ct. 760, 56 L.Ed. 1072. Plaintiff then, and on August 3, 1912, took a writ of error from this court. Excluding the time between the allowance and the dismissal of the writ of error from the Supreme Court, less than 6 months elapsed between the judgment below and the allowance of the present writ; including that time, the total interval was about 13 months. The matter is now before us on defendant's motion to dismiss this writ because not taken within the prescribed 6 months.

Inasmuch as it is clear under section 11 of the Court of Appeals Act (26 Stat. 829 (U.S. Comp. St. 1901, p. 552)) that we have no jurisdiction to entertain a writ of error unless it is sued out within 6 months after the entry of the judgment sought to be reviewed, the sole question here must be whether, in the computation of that 6 months, we may exclude the time during which plaintiff was attempting to pursue his mistaken remedy in the Supreme Court. To establish the right to this exclusion, plaintiff in error relies chiefly upon the decisions of the Supreme Court in Ensminger v. Powers, 108 U.S. 292, 2 Sup.Ct. 643, 27 L.Ed. 732, and Pacific R.R. Co. v. Missouri Pacific R.R. Co., 111 U.S. 520, 4 Sup.Ct. 583, 28 L.Ed. 498. In Ensminger v. Powers it was held that, in computing the time limitation for filing in the Circuit Court a bill of review, that period should be excluded during which an appeal had been pending in the Supreme Court. The case is distinguishable from the present one in two respects: First, the rule with regard to filing bills of review was a self-imposed limitation, and not a fixed and necessary condition of the statute upon which alone jurisdiction rests; second, the appeal which had been taken was authorized, and, as matter of law, unquestionably operated to remove the entire case to the Supreme Court, and the case rightfully remained in the Supreme Court until dismissed therefrom for noncompliance with the Supreme Court rules. The jurisdiction of the Supreme Court was perfect, but it was defeated on condition subsequent; while in cases like the present the jurisdiction of the Supreme Court was always fatally defective because of a missing condition precedent. The same considerations apply to the holding in Pacific R.R. v. Missouri Pacific R.R. That was a case in equity involving the doctrine of laches, not a statutory jurisdictional condition, and the appeal, the effect of which was considered, had been subject to no jurisdictional defect.

These decisions do not justify us in departing from the strictness with which a statutory limit upon the right to review has always been enforced. Credit Co. v. Arkansas Co., 128 U.S. 258, 9 Sup.Ct. 107, 32 L.Ed. 448; Williams Co v. U.S., 215 U.S. 541, 30 Sup.Ct. 221, 54...