IMPERIAL BEVERAGE CORPORATION v. Charles E. Hires Co.

• Decision Date: 14 October 1931
• Docket Number: No. 4416.,4416.
• Citation: 55 F.2d 405
• Parties: IMPERIAL BEVERAGE CORPORATION v. CHARLES E. HIRES CO.
• Court: U.S. District Court — Eastern District of New York

55 F.2d 405 (1931)

IMPERIAL BEVERAGE CORPORATION v.CHARLES E. HIRES CO.

No. 4416.

District Court, E. D. New York.

October 14, 1931.

Lewis J. Feinstein, of New York City, for plaintiff.

Hornblower, Miller, Miller & Boston, of New York City(Charles A. Boston and Mark F. Hughes, both of New York City, of counsel), for defendant.

MOSCOWITZ, District Judge.

This is a motion made by the defendants for an order vacating and setting aside an order made and entered herein on September 19, 1931, which, by its terms, extended the return day of the citation herein to October 21, 1931, and extended the time for the plaintiff to procure to be settled and filed its bill of exceptions herein to and including October 21, 1931, and extended the term of this court, at which verdict herein was rendered and judgment entered to and including October 21, 1931.

The sole question for consideration is whether the court had power to make said order.

Judgment was entered in favor of the defendant herein on May 22, 1931.The notice of appeal, assignment of errors, bond on appeal, and order allowing the appeal were all filed on August 22, 1931.The citation on the appeal was made on August 22, 1931, and was made returnable before the Circuit Court of Appeals on September 21, 1931.For the purpose of this application, the defendant concedes that the citation was duly issued and served on August 22, 1931.Pursuant to the rules of this court, the term was automatically extended ninety days, to wit, August 20, 1931.

Between May 22, 1931, the date of the entry of the final judgment, and August 20, 1931, no application was made for an order extending the term beyond August 20, 1931, and no order was made extending the term.No proposed bill of exceptions was presented to the court during the ninety-day period.

On September 19, 1931, the plaintiff made an application to this court upon notice to the defendant for an order extending the return day of the citation, extending the time for the plaintiff to procure, settle, and file its bill of exceptions, and extending the term of this court to October 21, 1931.

Upon the argument of the motion, due to the shortness of time and in order to preserve whatever rights the plaintiff had, plaintiff's motion was granted, and an order was entered thereon on September 19, 1931.At that time counsel for the defendant was advised that the court would consider an application to vacate said order of September 19, 1931.The motion made herein is for that purpose.The court was without power to grant the order of September 19, 1931, said order having been made and entered after the expiration of the term at which final judgment was entered.

Rule V of the General Rules of this court provides: "For the purpose of taking any action which must be taken within the term of the Court at which final judgment or decree is entered, each term of Court is extended for 90 days from the date of entry of the final judgment or decree."

Rule XXVI of the General Rules of this court provides: "* * * Before the expiration of the term ex parte orders may be signed by any judge of the Court extending the term from time...