Harrison v. German-American Fire Ins. Co.

• Decision Date: 16 September 1898
• Docket Number: 265.
• Citation: 90 F. 758
• Parties: HARRISON v. GERMAN-AMERICAN FIRE INS. CO.
• Court: U.S. District Court — Southern District of Iowa

90 F. 758

HARRISON v. GERMAN-AMERICAN FIRE INS. CO.

No. 265.

United States Circuit Court, S.D. Iowa, Eastern Division.

September 16, 1898

D. N Sprague and A. H. Stutsman, for plaintiff.

McVey &amp McVey, for defendant.

WOOLSON J.

This action has a somewhat peculiar history. Instituted in January, 1893, in the district court of Iowa, in and for Louisa county, it was removed to this court on application of defendant, and filed herein June 20, 1893. Trial was had to the court in July, 1894. The opinion of the court was handed down in November of that year, ordering judgment for plaintiff. Defendant having meanwhile filed his motion for rehearing, etc., the court, on December 24, 1894, ordered that no execution issue until further order of court, and time was given to defendant to file his brief in support of said motion. On February 6, 1895, and during the January term of court, judgment was formally entered, on the opinion theretofore filed, against defendant. The judgment entry closes as follows:

Defendant excepts, and is allowed twenty days to present brief and argument for rehearing, which is granted, and execution ordered suspended until hearing and decision on the motion.

On April 25th, following, the decision of the court overruling defendant's motion for rehearing was handed down, the same closing as follows To which defendant excepts, and is given sixty days to prepare, have signed, and filed such bill of exceptions as defendant may be advised is desirable. The clerk will enter due order as above, and notify counsel of record for both parties of the decision now reached.

The record entry relating thereto is given under the heading of 'Vacation Entries,' and is as follows (omitting title of cause, etc.):

This day, this cause coming on for hearing upon the motion of defendant for a rehearing of the above-entitled cause, and the court, having seen and read the briefs of counsel in argument, and being now fully advised in the premises, doth overrule the said motion for rehearing, to which ruling defendant at the time excepted. It is further ordered that defendant have sixty days in which to prepare, have signed and filed his bill of exceptions, as defendant may be advised is desirable. Dated April 25, 1895.

On July 19th following, counsel for defendant forwarded by express, to the clerk of the court, in said Eastern division, his draft for bill of exceptions to be presented to the judge for signature. The 60 days provided in the order of April 26th for filing of bill of exceptions having already expired, the clerk returned this draft for bill of exceptions to counsel for defendant. The exact date when same was so returned does not appear, but it was very soon after the bill had been expressed to him.

On November 5, 1895, counsel for defendant forwarded to the clerk a petition for rehearing, which was filed on November 7th. This petition (after specifying assignments alleged as error) states as follows:

The opinion in this case was filed on the 25th day of April, 1895, and this defendant had no notice whatever that such opinion was filed, or that any decision had been made in said case, until more than sixty days had expired, within which the defendant was to prepare, tender, and have filed a bill of exceptions. That the defendant's counsel understood the court to say, when the case was taken under advisement, that the clerk would notify the defendant when the decision was rendered; and the defendant avers that neither the clerk nor the court nor any one else ever notified this defendant that any decision had been rendered in said cause until after the same appeared in volume 67 of the Federal Reporter. The defendant says that the first notice that it had that a decision had been rendered and filed in said case was learned from the publication of said opinion in the 67th volume of said Federal Reporter, as the same came out in the advance sheets, which was more than sixty days after the filing of said opinion, and that this was not confirmed until about the 1st of July by the judge who rendered the opinion. That the defendant desired to take, and is now desirous of taking, an appeal from the decision of this court in said case and was prevented from so doing by being unable to tender a bill of exceptions within the time provided in the judgment. That by the printed opinion in said Federal Reporter (page 591), ninety days is given in which to prepare, sign, and have filed a bill of exceptions. That this defendant did within ninety days from the 25th of April, 1895, have prepared, and did send, a bill of exceptions to the judge, notifying counsel on the other side to have the same allowed and signed. That defendant was then informed that the order of the court stated that the bill of exceptions should be prepared and filed within sixty days after the rendering of the opinion in said case, and that the court failed and refused to sign said bill of exceptions. This defendant has not examined the record in said cause, but has been informed by the clerk of said court at Keokuk that the opinion in said cause provided that sixty, instead of ninety, days should be given in which to file a bill of exceptions. That this defendant believes that there is an error in the finding and judgment of this court, and desires to take an appeal, and has the statutory right to have an appeal, and would have appealed had the bill of exceptions been allowed upon which it based its appeal; and that, without the bill of exceptions, no appeal can be taken, as counsel are advised in this case. This application would have been made sooner but for the fact that negotiations have been pending between counsel for defendant and plaintiff with a view to arrange for a bill of exceptions; and one counsel for plaintiff, to wit, Judge A. H. Stutsman, informed counsel for defendant that he believed that counsel for plaintiff should have consented to the filing of a bill of exceptions without going to the trouble and expense of making this application; but the other counsel for plaintiff felt constrained on account of the wishes of his clients to withhold his consent to the filing of said bill of exceptions, but has at no time positively refused to allow the same to be taken and allowed. Defendant further says that this application is not made for delay, but in the interests of justice; and, unless this rehearing is granted, this defendant will be prevented from appealing to the circuit court of appeals, and taking the judgment of that tribunal, as it has a right to do; and it will be so prevented without any fault or negligence upon its part, or that of its counsel.

These statements are verified by the oath of A. H. McVey, the counsel for defendant, who has had sole charge of the case on part of defendant.

On June 23, 1898, counsel for plaintiff and defendant appeared before the judge of this court, and partial hearing was had in the matters herein then pending, and on a further motion for an order setting aside the ruling of April 25th above given. This latter motion, which was orally presented on said partial hearing, was subsequently reduced to writing, and is among the files herein. The written contents of said motion are verified by the oath of said A. H. McVey. Pursuant to agreements made at said partial hearing, counsel have submitted written arguments on the two motions above described as pending, and the matter is now to be formally decided.

From the foregoing history of the case, there naturally arises the suggestion that much delay has attended the efforts of counsel in the matter of obtaining a ruling upon motion for rehearing, etc. The professional statements of A. H. McVey (counsel for defendant, who has had for defendant sole charge before the court of this case), as made before the judge convincingly show that he received no notice from the clerk of this court of the ruling had of record April 25th. The clerk was therein directed to notify counsel of the overruling of motion for rehearing, etc. The deputy then having charge of the clerk's office in the Eastern division states that such notice was sent by mail to counsel for defendant. But I am satisfied from the professional statements of counsel that such notice failed to reach him. The showing is without contradiction that defendant's counsel did not know or learn that his said motion had been overruled until after the 60 days provided in said order of April 25th had expired. In the opinion, deciding the main case, and ordering judgment against defendant, 90 days were allowed for filing bill of exceptions by defendant. This opinion was not published until after decision was had, on said motion for rehearing. This publication occurred some time early in the July following said entry of April 25th. As counsel for defendant had not been notified of...