Lockman v. Lang

• Decision Date: 23 November 1903
• Docket Number: 1,923.
• Citation: 128 F. 279
• Parties: LOCKMAN v. LANG et al.
• Court: U.S. Court of Appeals — Eighth Circuit

128 F. 279

LOCKMAN v. LANG et al.

No. 1,923.

United States Court of Appeals, Eighth Circuit.

November 23, 1903

Syllabus by the Court

The filing of an assignment of errors before or at the time of the allowance of an appeal is indispensable under the eleventh rule of the Circuit Courts of Appeals (91 F. vi, 32 C.C.A. lxxxviii), and the appeal will be dismissed if the assignment is not thus filed.

A proceeding in bankruptcy is a proceeding in equity, and orders and decrees therein cannot be reviewed by writs of error.

Lester McLean (W. Scott Bicksler and Edmon G. Bennett, on the brief), for appellant.

H. W Currey (William L. Dayton, on the brief), for appellees.

Before SANBORN and VAN DEVANTER, Circuit Judges, and HOOK, District Judge.

SANBORN Circuit Judge.

This is an appeal from an adjudication in bankruptcy rendered on March 24, 1903. On the same day the bankrupt prayed an appeal and it was allowed, but he filed no assignment of errors until March 31, 1903. A motion is made to dismiss the appeal because the assignment of errors was not filed when the appeal was allowed. Section 997 of the Revised States (U.S Comp. St. 1901, p. 712) makes an assignment of errors, a prayer for reversal, and a citation to the adverse party essential parts of the record upon which a review of the rulings of a trial court may be invoked in the appellate courts of the United States. When an appeal is prayed and allowed in open court, the prayer for reversal and the citation may be waived, but the assignment of errors is indispensable to the perfection of the appeal. Rule 11 (91 F vi, 32 C.C.A. lxxxviii) of this court provides that 'the plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed. ' The reasons for this rule and the importance of a compliance with it have been stated in numerous opinions of this court City of Lincoln v. Sun-Vapor Street Light Co., 8 C.C.A. 253, 256, 59 F. 756, 759; Union Pac. R. Co v. Colorado Eastern R. Co., 4 C.C.A. 160, 54 F. 22; U.S. v. Goodrich, 4 C.C.A. 160, 161, 54 F. 21, 22. In Frame v. Portland Bold Min. Co., 47 C.C.A. 664, 665, 108 F. 750, 751, this court dismissed a writ of error because the assignment of errors was not filed until two days after the issue of the writ. In Webber v. Mihills (C.C.A.) 124 F. 64, we dismissed an appeal because the assignment of errors was not filed until seven days after the appeal was allowed. There are other authorities which illustrate the application of this rule: Flahrity v. Railroad Co., 6 C.C.A. 167, 56 F. 908, Crabtree v. McCurtain, 10 C.C.A. 86, 61 F. 808; Lloyd v. Chapman, 35 C.C.A. 474, 93 F. 599; Insurance Co. v. Conoley, 11 C.C.A. 116, 63 F. 180; Grape Creek Coal Co. v. Farmers' Loan & Trust Co., 12 C.C.A. 350, 63 F. 891; Van Gunden v....