Gould v. United States

• Decision Date: 18 June 1913
• Docket Number: 3,925,3,926.,3,924
• Citation: 205 F. 883
• Parties: GOULD v. UNITED STATES. WRIGHT v. SAME. WHITE v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

205 F. 883

GOULD v. UNITED STATES. WRIGHT v. SAME. WHITE v. SAME.

Nos. 3,924, 3,925, 3,926.

United States Court of Appeals, Eighth Circuit.

June 18, 1913

George E. Tralles, of Denver, Colo. (Joel F. Vaile, Henry McAllister, Jr., and William N. Vaile, all of Denver, Colo on the brief), for plaintiffs in error.

Fred A Maynard, Special Asst. Atty. Gen. (Harry E. Kelly, U.S Atty., of Denver, Colo., on the brief), for the United States.

Before SANBORN and CARLAND, Circuit Judges, and WILLARD, District judge.

SANBORN Circuit Judge.

Two sets of writs of error and two sets of orders by the judge below that the writs should supersede the judgments in these cases appear in the record before us and the United States makes a motion to dismiss the second writ of error and to set aside the second set of orders.

On October 17, 1912, each of the defendants below, who were tried together, was adjudged to be imprisoned in the penitentiary 15 months and to pay a fine of $200. On the same day each defendant sued out a writ of error, gave security and obtained a supersedeas of the judgment. These writs of error were returnable during the December, 1912, term of this court, which ended on May 3, 1913. On the latter day a transcript and a return to each of these writs was filed in this court. When these writs were issued, the bill of exceptions had not been prepared, and the assignments of error filed with the writs did not specify the alleged errors during the trial. On January 19, 1913, the bill of exceptions was filed in the court below, and thereupon each of the defendants filed another assignment of errors which specified the alleged errors at the trial, sued out a second writ of error, gave security, obtained an order that his second writ should operate as a supersedeas, and caused a return to his second writ, including a transcript of the record in which was embodied the bill of exceptions, to be filed in this court.

Counsel for the government argue that this court is without jurisdiction of these cases because the defendants voluntarily abated the first writs by failing to file their transcripts and returns at or before the return day named in the writs, and that the second writs are void because the first writs were not dismissed or abated by an order of the court or motions by the plaintiffs in error before the second writs were issued. Rule 8 of the Supreme Court (32 S.Ct. vi) requires all writs of error and citations to be made returnable not exceeding 30 days from the day of signing the citation 'whether the return day fall in vacation or in term time. ' Rule 14 of this court (188 F. x, 109 C.C.A. x) requires all writs of error and citations to be returnable not exceeding 60 days from the day of signing the citation 'whether the return day fall in vacation or in term time. ' Rule 9 of the Supreme Court (32 S.Ct. vii) and Rule 16 (188 F. xi, 109 C.C.A. xi) of this court make it the duty of the plaintiff in error to docket his case and file the record with the clerk of the appellate court by or before the return day, and provide that, if he fail to do so, the defendant in error may have the case docketed and dismissed on a certificate of the clerk of the court below that the writ was sued out at the time it was tested. Where under these rules the transcript or return is filed in the appellate court after the return day named in the writ, but before the expiration of the next term after the writ issued, the writ is in force unless before the filing of the transcript or return the defendant in error has moved to dismiss the case. 'It has always been held,' says the Supreme Court, 'that, if the case is not so docketed and dismissed by the appellee, the appellant is in time if the record be filed during the return term. ' Evans v. Bank, 134 U.S. 330, 331, 10 Sup.Ct. 493, 494 (33 L.Ed. 917); Chow Loy v. United States, 112 F. 354, 357, 50 C.C.A. 279; Green v. Elbert, 137 U.S. 615, 621, 11 Sup.Ct. 188, 34 L.Ed. 792; Southern Pine Co. v. Ward, 208 U.S. 126, 137, 28 Sup.Ct. 239, 52 L.Ed. 420.

But, if the record is not filed during the return term, the writ expires, and the plaintiff in error may have a second writ within the time limited for an appeal. Evans v. Bank, 134 U.S. 330, 331, 10 Sup.Ct. 493, 33 L.Ed. 917; Edmonson v. Bloomshire, 7 Wall. 306, 309, 19 L.Ed. 91; Aspen Mining Co. v. Billings, 150 U.S. 35, 14 Sup.Ct. 4, 37 L.Ed. 986; Small v. Northern Pacific R.R. Co., 134 U.S. 514, 515, 10 Sup.Ct. 614, 33 L.Ed. 1006; Pender v. Brown, 120 F. 496, 56 C.C.A. 646. The defendant in error made no motion to docket and dismiss the cases presented by the first writs of error before the transcript and return to them was filed on the last day of the next term of this court after their allowance. If, therefore, the first set of writs did not become ineffective by voluntary abandonment, they are still in force, and this court by virtue of them has jurisdiction of the cases. If, on the other hand, they became ineffective by such abandonment, the second set of writs was lawfully issued, and this court has jurisdiction under the latter writs. As this court has jurisdiction of the cases, the only question remaining under the motion to dismiss the writs is one of procedure, of method of hearing in this court.

The allowance of a writ of error is the commencement of a new suit in the appellate court. Its allowance by the district judge is the act of the appellate court which he is empowered to do for it by act of Congress. When the defendants in error below sued out their first writs of error in October, 1912 the first term of this court at which their cases could be heard would commence in September, 1913. They were not required by the rules of this court to file their briefs before July 20, 1913. They had the right to prepare for and to have a review by this court of every ruling of the court below which they believed to be erroneous, and they had six months in which to sue out their writs of error. They sued out their first...