Ellicott Mach. Corporation v. Vogt Bros. Mfg. Co.

• Decision Date: 21 February 1920
• Citation: 267 F. 934
• Parties: ELLICOTT MACHINE CORPORATION v. VOGT BROS. MFG. CO.
• Court: U.S. District Court — Western District of Kentucky

267 F. 934

ELLICOTT MACHINE CORPORATION v. VOGT BROS. MFG. CO.

United States District Court, W.D. Kentucky.

February 21, 1920

Humphrey Crawford, Middleton & Humphrey, of Louisville, Ky., for plaintiff.

Barret Allen & Akinson and Helm Bruce, all of Louisville, Ky., for defendant.

WALTER EVANS, District Judge.

The trial of this case was concluded at the last March term. The jury returned its verdict on June 3, 1919, the judgment of the court thereon in the regular course was drawn up on a separate paper, was then signed by the judge and passed to the clerk, with directions to enter it. It was then and there entered upon the order book of the court, and is as follows:

No 283.

In the District Court of the United States, for the Western District of Kentucky.

Ellicott Machine Corporation, Plaintiff, v. Vogt Brothers Manufacturing Company, Defendant.

Judgment.

This cause coming on again this day for hearing, the jury appeared and also the parties by their respective counsel. The jury, after being instructed by the court, retired to their room to consider of their verdict, and returned into court the following verdict:

'We, the jury, find for the plaintiff for the sum of $17,440.00 damages-- $1,532.40 advanced money.

P. I. Burks, Foreman.'

Pursuant to the foregoing verdict, it is now ordered, considered, and adjudged by the court that the plaintiff, Ellicott Machine Corporation, do recover of the defendant, Vogt Brothers Manufacturing Company, the sum of $18,972.40, with interest thereon at the rate of six per cent. per annum from this 3d day of June, 1919, until paid, and their costs herein expended, as the same may be properly taxed by the clerk.

Time is given the defendant to and including September 15, 1919, to prepare and tender its bill of exceptions herein.

June 3, 1919.

Walter Evans, Judge.

On the 15th day of September, 1919, the defendant filed its assignment of errors over the signatures of its counsel. Its closing paragraph was in this language:

'Wherefore the defendant prays that the judgment of the court entered herein on the 3d day of June, 1919, be reversed.'

It also tendered its bill of exceptions, but action upon it was postponed from time to time upon the agreement of the parties, as shown by orders entered of record. On January 15, 1920, the defendant, in a written motion filed and entered of record, asked the court 'to proceed to settle the bill of exceptions heretofore tendered herein. ' To this motion plaintiff filed objections, based upon the alleged ground that, the defendant having delayed more than six months from the date of the judgment to sue out a writ of error, the settling of the bill of exceptions would be futile. After much argument this objection was overruled, as not bearing upon the mere motion to settle the bill, which was all that was then before the court. The effect to be given to it when settled was not under discussion, and was not for us, but for a higher tribunal.

A settlement of the bill of exceptions had not been reached, when, on January 27, 1920, the defendant filed a petition asking for the allowance of a writ of error to the Circuit Court of Appeals. To this the plaintiff objected. Ordinarily a writ of error is likely to be granted as of course, thereby leaving the question of its jurisdiction to be determined by the appellate tribunal; but the plaintiff has raised the question here, thus making it necessary for us to determine whether the defendant has the right to the writ. This follows from section 1 of rule 13 prescribed by the Circuit Court of Appeals of this Circuit (202 F. viii, 118 C.C.A. viii) which is as follows: 'An appeal from or writ of error to a District Court in the cases provided for in sections 128, 129 and 130 of the Judicial Code approved March 3, 1911, may be allowed in term time or in vacation by the Circuit Justice, wherever acting, or by any Circuit Judge acting within the circuit, or by any District Judge acting within the district where the case was heard and authorized to hold court in that district; and the proper security may be taken and the citation be signed by him and he may also grant a supersedeas and stay of execution or of proceedings pending such a writ of error or appeal.'

The controlling statute of the United States in this situation is section 11 of the act approved March 3, 1891 (26 Stats. 829 (section 1647, 3 Comp.Stats. 1916, p. 3266)), which reads thus:

'No appeal or writ of error by which any order, judgment, or decree may be reviewed in the Circuit Court of Appeals under the provisions of this act shall be taken or sued out except within six months after the entry of the order, judgment, or decree sought to be reviewed: Provided however, That in all cases in which a lesser time is now by law limited for appeals or writs of error such limits of time shall apply to appeals or writs of error in such cases taken to or sued out from the Circuit Courts of Appeals.'

This statute (the specially applicable clauses of which we have italicized) has been construed by the Supreme Court in Old Nick Williams Co. v. United States, 215 U.S. 541, 543, 544, 545, 30 Sup.Ct. 221, 54 L.Ed. 318, and its opinion and those therein referred to, including that of the Circuit Court of Appeals in that case (152 F. 925, 82 C.C.A. 73), leave nothing to be said, except that it is explicitly ruled that the courts have no power to extend the time fixed by the statute.

Nor may we forget that in cases like Butt v. United States (C.C.) 126 F. 794, Born v. Schneider (C.C.) 128 F. 179, and Threadgill v. Platt (C.C.) 71 F. 1, it was held that a judge has no right to issue a writ of error after the expiration of the six months named in the statute, though this rule is qualified where there has been a motion for a new trial which consumed part of the period.

For present purposes the facts here are: (1) That on June 3, 1919, as stated by defendant in its assignment of errors, and as is otherwise clearly shown, there was an 'entry' of the judgment of the court made by its order in writing, signed by the judge and based upon the verdict of the jury then returned; (2) that no motion for a new trial, staying the operation of the judgment thus entered, was ever made, nor was any effort made otherwise to stay it; (3) that an assignment of errors was filed on September 15, 1919, as provided in the judgment; and (4) that the writ of error was applied for on the 27th day of January, 1920, and at no previous time.

These undisputed facts, viewed in connection with the statute and judicial construction of its terms, demonstrate, prima facie, that the application for a writ of error should have been made prior to December 4, 1919. That was not done. The failure to do it, considered with reference to the facts just stated, and those which will presently be mentioned, would seem clearly to bar the defendant's right to the writ. Notwithstanding this almost necessary result, the defendant, as we have seen, filed a petition for its allowance; and it must not be forgotten that certain rights of the plaintiff may have matured, of which it cannot lawfully or justly be deprived by any delay of the defendant or of the court. Nor, when the time of asking for a writ of error has expired, can it be arrested or called back by any order of the court. 215 U.S. 544, 30 Sup.Ct. 221, 54 L.Ed. 318, citing Credit Co. v. Arkansas Central Railway, 128 U.S. 261, 9 Sup.Ct. 107, 32 L.Ed. 448. Otherwise, said the court, the law which limits the time within which appellate proceedings can be taken would be a dead letter. Meantime, as we have seen, on the 15th of September, 1919, the defendant filed its bill of exceptions to what had taken place at the trial, and on January 15, 1920, in a written motion, had asked the court 'to proceed to settle the bill of exceptions heretofore tendered herein.'

The argument upon plaintiff's objections to settling the bill of exceptions took a very wide range, extending, not only to the question of the futility of settling the bill of exceptions, but to the time in which a writ of error might be allowed, including a discussion of the effect of the statement, then in that way only and for the first time made, that the judge had not signed on the order book the record of the proceedings of June 3, 1919. This argument took place on January 20, 1920. After consideration, the court, while overruling, upon the grounds indicated, the objection made to settling the bill of exceptions, contemplated the possibility that the plaintiff might desire to sue out a writ of fieri facias to enforce collection of its judgment, entry of which had been made on June 3, 1919, and might, in such event, be embarrassed by the contention that the record of that day's proceedings had not been signed on the order book by the judge. To provide against delays or other possible embarrassments on a mere collateral contingency or issue like that, in the event of a proceeding to enjoin the execution of such a writ, and for no other reason, the judge, as then explained, made and signed the following entry on the order book, viz.:

'For special reasons the record of the proceedings of June 3, 1919, is signed this January 22, 1920.'

In doing this upon these special reasons the court in no way intended to disregard or to set aside its unwritten rule adopted in April, 1899, and acted upon ever since, not to sign on the order book the record of the proceedings of each day. This construction of the law and this course were decided upon after careful consideration, and have been adhered to ever since. No case taken in the meantime from this to a higher court has ever been based upon any condition of the record which did not conform to that construction. All...