Hultberg v. Anderson, 1,970.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation203 F. 853
Decision Date13 February 1913
PartiesHULTBERG v. ANDERSON et al. SAME v. CHYTRAUS.
Docket Number1,970.

203 F. 853

HULTBERG
v.
ANDERSON et al.

SAME
v.
CHYTRAUS.

No. 1,970.

United States Court of Appeals, Seventh Circuit.

February 13, 1913


John Barton Payne, Silas H. Strawn, and Max H. Whitney, all of Chicago, Ill., David Ritchie, of Salina, Kan., and Harris F. Williams, of Chicago, Ill., for appellant.

John J. Healy and E. Allen Frost, both of Chicago, Ill., for appellee.

Before BAKER, Circuit Judge, and LANDIS, District Judge. [203 F. 854]

BAKER, Circuit Judge.

Appellee presents his motion that the appeal be dismissed on the ground that this court lacks jurisdiction to entertain it by reason of appellant's failure to file with the clerk of the trial court an assignment of errors before the appeal was allowed.

Rule 11 of this court (150 F. xxvii, 79 C.C.A. xxvii) requires such a filing, and declares that 'no writ of error or appeal shall be allowed until such assignment of errors shall have been filed. ' When this appeal was allowed in open court at the time the decree was announced, no assignment of errors had been filed. If strict compliance with the above-quoted portion of rule 11 is jurisdictional, the subsequent filing of the assignment of errors, with leave of the trial court and before the transcript of the record was prepared and filed in this court (all within the statutory time for taking the appeal), was without avail, and this court would have no lawful right to look into the record for any purpose.

In determining whether the aforesaid provision is jurisdictional or merely directory of practice, it should be read in pari materia with subsequent parts of the same rule. 'Such assignment of errors shall form part of the transcript of the record and be printed therewith. When this is not done, counsel will not be heard, except at the request of the court, and errors not assigned according to this rule will be disregarded, but the court at its option may notice a plain error not assigned. ' Taking the rule as a whole, we are of the opinion that this court has jurisdiction of a cause wherein a transcript of the proceedings and judgment or decree has been duly filed in this court, whether an assignment of errors is in the transcript or not, and may exercise its jurisdiction either by punishing the appellant with a dismissal for noncompliance with the practice rule, or by hearing the controversy and deciding the merits. This result is confirmed by considering the purpose of having an assignment of errors in the...

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6 practice notes
  • Robertson v. Morganton Full Fashioned Hosiery Co., No. 4246.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 5 Abril 1938
    ...135, 79 L.Ed. 279; Mutual Life Ins. Co. v. Conoley, 4 Cir., 63 F. 180; Bernard v. Lea, 4 Cir., 210 F. 583; Hultberg v. Anderson, 7 Cir., 203 F. 853; Reed v. Anderson, 8 Cir., 236 F. 345; Willamette & Columbia River Towing Co. v. Hutchinson, 9 Cir., 236 F. 908; Board of County Commissioners ......
  • Green v. United States, No. 5006.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 9 Mayo 1927
    ...docketed in this court until November 10, 1926. We are inclined to the view, expressed by Judge Baker in Hultberg v. Anderson (C. C. A.) 203 F. 853, that the requirements of rule 11 that no writ of error shall be allowed unless an assignment of errors has been filed is not jurisdictional, b......
  • Joplin Ice Co. v. United States, No. 10565.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 30 Diciembre 1936
    ...S. (C.C.A. 10) 64 F.(2d) 775; Green v. U. S. (C.C.A.9) 19 F.(2d) 850; Bernard v. Lea (C.C.A. 4) 210 F. 583; Hultberg v. Anderson (C.C.A. 7) 203 F. 853. But our question here is not as to the jurisdiction of the court; it concerns the enforcement of rule 23. The rule is to the same effect as......
  • United States v. Dieckmann, No. 6572.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 13 Enero 1939
    ...on this in view of the fact that this court has held that assignments of error are not jurisdictional. See Hultberg v. Anderson, 7 Cir., 203 F. 853, and cases there cited; Benjamin v. Buell, 7 Cir., 268 F. 792, 793. See also, for similar rulings of other Circuit Courts of Appeal, Bernard v.......
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6 cases
  • Robertson v. Morganton Full Fashioned Hosiery Co., No. 4246.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 5 Abril 1938
    ...135, 79 L.Ed. 279; Mutual Life Ins. Co. v. Conoley, 4 Cir., 63 F. 180; Bernard v. Lea, 4 Cir., 210 F. 583; Hultberg v. Anderson, 7 Cir., 203 F. 853; Reed v. Anderson, 8 Cir., 236 F. 345; Willamette & Columbia River Towing Co. v. Hutchinson, 9 Cir., 236 F. 908; Board of County Commissioners ......
  • Green v. United States, No. 5006.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 9 Mayo 1927
    ...docketed in this court until November 10, 1926. We are inclined to the view, expressed by Judge Baker in Hultberg v. Anderson (C. C. A.) 203 F. 853, that the requirements of rule 11 that no writ of error shall be allowed unless an assignment of errors has been filed is not jurisdictional, b......
  • Joplin Ice Co. v. United States, No. 10565.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 30 Diciembre 1936
    ...S. (C.C.A. 10) 64 F.(2d) 775; Green v. U. S. (C.C.A.9) 19 F.(2d) 850; Bernard v. Lea (C.C.A. 4) 210 F. 583; Hultberg v. Anderson (C.C.A. 7) 203 F. 853. But our question here is not as to the jurisdiction of the court; it concerns the enforcement of rule 23. The rule is to the same effect as......
  • United States v. Dieckmann, No. 6572.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 13 Enero 1939
    ...on this in view of the fact that this court has held that assignments of error are not jurisdictional. See Hultberg v. Anderson, 7 Cir., 203 F. 853, and cases there cited; Benjamin v. Buell, 7 Cir., 268 F. 792, 793. See also, for similar rulings of other Circuit Courts of Appeal, Bernard v.......
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