Klein v. Southern Pac. Co.

• Decision Date: 23 August 1905
• Docket Number: 2,851.
• Citation: 140 F. 213
• Parties: KLEIN V. SOUTHERN PAC. CO.
• Court: U.S. District Court — District of Oregon

140 F. 213

KLEIN V. SOUTHERN PAC. CO.

No. 2,851.

United States Circuit Court, D. Oregon.

August 23, 1905

James Gleason, for plaintiff.

Wm. D Fenton and R. A. Leiter, for defendant.

GILBERT Circuit Judge.

The defendant presents a motion for an order staying execution until the motion for a new trial shall be disposed of and a bill of exceptions settled and allowed. The plaintiff denies that a motion for a new trial is pending. The question whether such a motion is now before the court is thus presented.

Judgment was rendered on December 27, 1904, at the October term of the court. On January 25, 1905, during the same term, a motion for a new trial was filed. The motion was not presented to the court during that term, and when the court, on April 8th adjourned for the term, no order was made continuing the motion to the succeeding term. At common law a motion for a new trial expires with the term, unless continued by special order of the court. Kane v. Burrus, 2 Smedes & M. 313. The Legislature of Oregon, recognizing this rule of the common law, has made provision that a motion for a new trial shall be heard and determined during the term, unless continued for advisement or want of time to hear it, and that, when not so heard and determined or continued, it shall be deemed withdrawn and may be disregarded. 1 B.&C.Comp. § 175. The Supreme Court of the United States has held in a series of cases that, if a motion for a new trial in a law case or a petition for rehearing in an equity case is made or presented in season and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the motion or petition is disposed of. Kingman v Western Manufacturing Co., 170 U.S. 675, 18 Sup.Ct. 786 42 L.Ed. 1192; Aspen Mining & Smelting Co. v. Billings, 150 U.S. 31, 14 Sup.Ct. 4, 37 L.Ed. 986; Texas & Pacific Railway v. Murphy, 111 U.S. 488, 4 Sup.Ct. 497, 28 L.Ed. 492; Brockett et al. v. Brockett, 2 How. 238-241, 11 L.Ed. 251. The power of the Circuit Courts, therefore, to dispose of a motion for a new trial filed at a prior term of the court, is thus clearly recognized, provided the motion was filed in season and was entertained by the court.

Just what is meant by the term 'entertained by the court' is not defined in these decisions. It would seem, however, that the term so industriously repeated must have some significance, and that the court thereby meant to say that something was necessary more than the mere filing of the motion. In City of New Orleans v. Fisher, 91 F. 585, 34 C.C.A. 15, cited by the defendant, the motion was taken under advisement, and thus was entertained. In Brockett et al. v. Brockett, supra, the petition for rehearing was referred to a master commissioner, and thereby was entertained by the court. The same is true of Cutting v. Tavares, O. & A.R. Co., 61 F. 150, 155, 9 C.C.A. 401, cited by the defendant herein. In Aspen Mining & Smelting Co. v. Billings, the following entry in the docket of the trial court was made on the first day of the term succeeding that on which judgment was entered: 'The motion for a rehearing of this cause having heretofore come on to be heard, and having been submitted on briefs,' etc. The court, answering the objection that it did not affirmatively appear that the motion or petition was entertained by the court, intimated that, since the application was passed upon as having been duly made, the presumption must be indulged that it was entertained by the court, in the first instance, during the term at which the decree was pronounced. Said the court: 'The entertaining of the petition keeps the jurisdiction alive.'

Counsel for the defendant cite two decisions of the Circuit Court of Appeals as authority for the proposition that a motion for a new trial seasonably filed at the term at which judgment is rendered, if undisposed of at that term, goes over for disposition at the succeeding term. Walker v. Moser, 117 F. 230, 54 C.C.A. 262; In re Worcester County, 102 F. 808, 42 C.C.A. 637. In the first of those cases the question before the court was whether the court below had exceeded its jurisdiction in ordering a new trial. The verdict had been rendered at the October term. An order had been made at that term allowing a motion for a new trial to be filed on November 15th, at the November term. At the latter term the judgment was rendered, and the motion for a new trial was heard and disposed of. In view of those facts the court could well say that the fact that the motion was not disposed of at the October term caused it to go over as unfinished business to the November term, for it was not actually filed until the November term, the term at which the judgment was rendered and the motion was disposed of. In the second case, the Circuit Court of Appeals for the First Circuit had before it the question of the validity of a decree rendered in a proceeding in bankruptcy by the District Court upon a petition for a rehearing. The appellate court said: 'Inasmuch as the petition was filed during the June term, and was not stricken out, but was heard and its merits acted on at the September term, it must be accepted that the petition was filed at the June term with the consent of the court, and that the court thus held its control over the proceeding. * * * The District Court therefore had power during the term at which the decree was entered to vacate it and enter a new decree, and retained this power over the case by permitting the filing of the petition for a rehearing, as we have already shown, so that the result is in all respects the same as though all the proceedings had occurred at the June term.'

The court, to fortify this position, referred to its prior decision in Andrews v. Thum, 64 F. 149, 12 C.C.A. 77, which it thus reviewed:

'A petition, which we held to be in substance a petition for a rehearing, was seasonably filed in an equity cause at the October term of the Circuit Court for the District of Massachusetts. There was nothing in the case to show that the petition was brought to the attention of that court

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