Louisville Trust Co. v. Stockton
| Decision Date | 21 January 1896 |
| Docket Number | 445. |
| Parties | LOUISVILLE TRUST CO. v. STOCKTON. |
| Court | U.S. Court of Appeals — Fifth Circuit |
H Bisbee and C. D. Rhinehart, for plaintiffs in error.
A. W Cockrell, for defendant in error.
Before PARDEE and McCORMICK, Circuit Judges, and BOARMAN, District judge.
The defendant in error moves to dismiss the writ of error in this case upon the following grounds: (1) No petition for a writ of error was made or filed herein. (2) No writ of error was allowed herein, on petition or otherwise. (3) The writ of error was issued by the clerk of the circuit court in which judgment sought to be reviewed was rendered, without a petition filed therefor, and without an allowance thereof by a judge of said circuit court, or by a judge of the circuit court of appeals of the Fifth circuit, authorized by law to allow such writ of error. (4) The only action taken in respect of, or in reference to, the appeal based on the said writ of error herein, by a judge authorized by law to allow writs of error, was the signing of the bill of exceptions herein, on the 14th day of November, 1895, and the signing of citation herein, by Hon. James W. Locke, a judge of the said circuit court of the Southern district of Florida, on the 9th day of November, 1895, more than six months after the entry of the judgment herein sought to be reviewed, which said judgment was entered on the 1st day of May, 1895.
We have examined the record and considered the argument of counsel. The judgment in the court below was rendered on the 1st day of May, 1895, and thereupon a motion for a new trial was entered, which was overruled on the 2d day of June, 1895. The citation directing the defendant in error to answer in this court was signed and issued on the 9th day of November, 1895 more than six months after the entry of the judgment sought to be reviewed, but within six months from the date when the motion for a new trial was overruled. The time limited for suing out a writ of error does not begin to run while there is a motion for a new trial pending. Railway Co. v Murphy, 111 U.S. 488, 4 Sup.Ct. 497. A formal petition for the allowance of a writ of error, in order to vest the appellate court with jurisdiction, is not necessary. Davidson v. Lanier, 4 Wall. 447; Ex parte Virginia Com'rs, 112 U.S. 177, 5 Sup.Ct. 421. Even in case of appeal, the approval of the bond and signing of citation has been held to...
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Coughlin v. Aetna Life Ins. Company
... ... Alexander v. U. S. (C. C. A. 9th Cir.; 1893) 57 F. 828; ... Louisville Trust Co. v. Stockton (C. C. A. 5th Cir.; 1896) 41 ... U.S. App. 434, 18 C. C. A. 408, 72 F. 1." ... ...
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