Lockman v. Lang

• Decision Date: 18 July 1904
• Docket Number: 1,923.
• Citation: 132 F. 1
• Parties: LOCKMAN v. LANG et al.
• Court: U.S. Court of Appeals — Eighth Circuit

132 F. 1

LOCKMAN v. LANG et al.

No. 1,923.

United States Court of Appeals, Eighth Circuit.

July 18, 1904

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.

An allowance of an appeal on condition that the petitioner give a bond in a fixed amount does not become effective until the bond is given and accepted, and the filing of an assignment of errors before or at the time of the approval of the bond is a filing within the time prescribed by the rule.

The practice of taking an appeal and a writ of error to review the same adjudication is not only permissible, but commendable, in cases in which counsel have just reason to doubt which is the proper proceeding to give jurisdiction to the appellate court.

Where in proceedings by appeal and by writ of error to review the same rulings the alleged errors are the same in both proceedings, the filing of a single assignment of errors accomplishes the purpose of rule 11, and is sufficient to sustain the proceeding requisite to obtain the review.

An appeal is a matter of right, and it is allowed and the jurisdiction of the case is transferred to the appellate court by the acceptance by the proper court or judge of security upon the appeal within the time fixed by the statute.

A citation is not jurisdictional. Where an appeal has been allowed by the taking of security within the statutory time and the transcript of the record has been filed and the case has been docketed at the proper term of the appellate court the failure to issue a citation within the time prescribed for the appeal does not detract from the jurisdiction of the reviewing court, or furnish ground for a dismissal of the appeal, but the appellate court will grant an opportunity to issue and serve a citation.

An alleged bankrupt has a right to a reasonable time to answer petitions for his adjudication. A single day is not a reasonable time for an alleged bankrupt, who is not within the district, to answer an amended petition, which for the first time charges him with certain acts of fraud and bankruptcy.

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, VANDEVANTER, and BOOK, Circuit Judges.

SANBORN Circuit Judge.

This is an appeal from an adjudication of the bankruptcy of R. H. Williams, rendered on March 24, 1903. Since the proceedings in the District Court which are about to be considered, Williams has deceased, and Forrest Lockman, the administrator of his estate, has been substituted for him in this court. An appeal from the adjudication in bankruptcy was allowed to Williams on the day the judgment was rendered, and his bond upon the appeal was approved by the judge of the District Court on March 31, 1903. At the ensuing September term of this Court this appeal was dismissed on the authority of Webber v. Mihills, 124 F. 64, 59 C.C.A. 578, because the assignment of errors was not filed before or at the time of the allowance of the appeal, as required by the eleventh rule of the Circuit Court of Appeals (91 F. vi; 32 C.C.A. lxxxviii). Lockman v. Lang (C.C.A.)128 F. 279. A motion for a rehearing was subsequently granted, because it appeared that the order which allowed the appeal was not absolute as in Webber v. Mihills, but was 'upon the condition, nevertheless, that he (the alleged bankrupt) give bond on such appeal in the sum of one hundred dollars ($100), ' and he gave the bond and filed his assignment of errors within the 10 days allowed for his appeal by the act of Congress.

The conditional order of allowance did not become effective until its condition was complied with, until the bond on appeal was given and accepted under it. If no bond had been give or approved, the court below would never have lost, and this court would never have gained, jurisdiction of the case. Hence an assignment of errors filed before or at the time of the acceptance of the bond was filed within the time prescribed by the rule of this court. Williams' assignment of errors was filed on March 31, 1903, at the time of the approval of his bond, and the appellee was not entitled to a dismissal of his appeal because the assignment of errors was not filed at an earlier date. Simpson v. First National Bank (C.C.A.) 129 F. 257.

It is now contended, however, by counsel for the appellees, that this appeal should be dismissed because the specifications of error are preceded by the statement that the bankrupt 'files the following assignments of error, upon which he will rely in the prosecution of his writ of error in this, the above-entitled cause,' and because he prayed and obtained a writ of error to review the judgment against him at the time that he filed this assignment of errors and gave his bond on appeal, and he did not procure the issue of a citation upon the appeal until May 13, 1903, after the time for taking his appeal had elapsed. Through abundance of caution, counsel for Williams sued out a writ of error, and also procured the allowance of an appeal to review the same adjudication. The alleged errors upon which he relied to reverse the judgment against him were the same in each proceeding. The purpose of an assignment of errors is to inform the court and the counsel for the opposite party of the ground of the attack upon the rulings of the trial court. The practice of taking an appeal and a writ of error to review the same adjudications is not only permissible, but commendable, in cases in which counsel have just reason to doubt which is the proper proceeding to give jurisdiction to the appellate court. In such cases the reviewing court will consider both proceedings, will dismiss that one which is ineffective, and will review the rulings of the court below in accordance with the rules of the method applicable to the nature of the case before it. McFadden v. Milling Co., 97 F. 670, 672, 38 C.C.A. 355, 357; Files v. Brown, 124 F. 133, 136, 59 C.C.A. 403, 406; Hurt v. Hollingsworth, 100 U.S. 100, 102, 25 L.Ed. 569; Plymouth Min. Co. v. Amador Canal Co., 118 U.S. 264, 269, 6 Sp.Ct. 1034, 30 L.Ed. 232; Hooven, Owens, & Rentschler Co. v. John Featherstone's Sons, 49 C.C.A. 229,243, 111 F. 81, 86. The Law never requires, and courts ought never to demand, the conduct of futile proceedings. Where, in proceedings both by writ of error and by appeal to review the same ruling or adjudications, the errors alleged are the same in each proceeding, a single assignment of errors as completely accomplishes the object of rule 11 of this court (91 F. vi; 32 C.C.A. lxxxviii) as the filing of an assignment in each proceeding, and it is accordingly ample to sustain the proceeding requisite to invoke the jurisdiction of this court. The appeal cannot be dismissed because Williams failed to file a second assignment of errors containing the same specifications as those contained in the assignment filed in his proceeding to obtain the writ of error.

Was the failure to procure the issue of a citation until after the time to take the appeal had elapsed fatal to the jurisdiction of this court? In support of the contention that this question should be answered in the affirmative counsel cite Norcross v. Nave & McCord Mercantile Co., 101 F. 796, 42 C.C.A. 29, and Ruby v. Atkinson, 35 C.C.A. 458, 93 F. 577. But this issue has been determined otherwise by the Supreme Court in terms so clear and positive that the question is no longer open to debate. In Jacobs v. George, 150 U.S. 415, 416, 14 Sup.Ct. 159, 37 L.Ed. 1127, Chief Justice Fuller, in delivering the unanimous opinion of that court, said:

'It must be regarded as settled that: (1) Where an appeal is allowed in open court, and perfected during the term at which the decree or judgement appealed from was rendered, no citation is necessary. (2) Where the appeal is allowed at the term of the decree or judgment, but not perfected until after the term, a citation is necessary to bring in the parties; but if the appeal be docketed here at our next ensuing term, or the record reaches the clerk's hands seasonable for that term, and legal excuse exists for lack of docketing, a citation may be issued by leave of this court, although the time for taking the appeal has elapsed. (3) Where the appeal is allowed at a term subsequent to that of the decree or judgment, a citation is necessary, but may be issued properly returnable, even after the expiration of the time for taking the appeal, if the allowance of the appeal were before. (4) But a citation is one of the necessary elements of an appeal taken after the term, and if it is not issued and served before the end of the next ensuing term of this court, and not waived, the appeal becomes inoperative.'

As there are no terms in bankruptcy, it is conceded that a citation was necessary in this case, because the appeal cannot be said to be perfected at the term at which the judgment below was rendered. Nevertheless the appeal was perfected by the acceptance of the bond within the statutory time and by the docketing of the case in this court at the ensuing term. In this way the jurisdiction of the appellate court was...