Maple v. Union Pac. R. Co.
| Decision Date | 05 March 1920 |
| Docket Number | 5186. |
| Parties | MAPLE v. UNION PAC. R. CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Gerald F. Harrington, of Omaha, Neb. (R. M. Johnson and M. F Harrington, both of Omaha, Neb., on the brief), for plaintiff in error.
Charles A. Magaw and C. B. Matthai, both of Omaha, Neb. (Edson Rich and Thomas W. Bockes, both of Omaha, Neb., on the brief), for defendant in error.
Before HOOK, Circuit Judge, and AMIDON and BOOTH, District Judges.
This is a writ of error to reverse the judgment entered upon a verdict directed in favor of the defendant at the close of plaintiff's case. The action was one for personal injury under the Nebraska statute. Section 6052, R.S. 1913. Motion to dismiss the writ of error is made by the defendant in error, on the ground that the writ was not applied for in time. The judgment was entered November 8, 1917. The writ of error was applied for and allowed May 1, 1918.
The act of March 3, 1891 (26 Stat. 826, c. 517, Sec. 11 (Comp. St Sec. 1647)), provides as follows:
'That no appeal or writ of error by which any order, judgment, or decree may be reviewed in the Circuit Court of Appeals under the provisions of this act shall be taken or sued out except within six months after the entry of the order, judgment, or decree sought to be reviewed: Provided however, that in all cases in which a lesser time is now by law limited for appeals or writs of error such limits of time shall apply to appeals or writs of error in such cases taken to or sued out from the Circuit Courts of Appeals.'
In view of the proviso, it is claimed by defendant in error that the time for taking appeals and suing out writs of error is now governed by the act of September 6, 1916 (39 Stat. 727, c. 448, Sec. 6 (Comp. St. Sec. 1228a)), which provides as follows:
'That no writ of error, appeal, or writ of certiorari intended to bring up any cause for review by the Supreme Court shall be allowed or entertained, unless duly applied for within three months after entry of the judgment or decree complained of.'
In other words, it is contended that section 6 of the act of September 6, 1916, modifies section 11 of the act of March 3, 1891, because of the proviso contained in this latter section. In our opinion the contention is not well founded:
First. The language of section 6 of the act of September 6, 1916, is plain and unambiguous, and in terms applies to the Supreme Court only.
Second. The proviso in section 11 of the act of March 3, 1891, applied solely to cases for which at that time a lesser period than six months for writs of error and appeals existed; the words of the proviso being:
'In all cases in which a lesser time is now by law limited for appeals or writs of error,' etc.
The construction advocated by defendant in error would in effect make the proviso read:
'In all cases in which a lesser time is now (or shall hereafter be) by law limited for appeals or writs of error,' etc.
Such interpolative construction is not in our judgment permissible. Further, the proviso was not without application at the time of its passage. A single example will suffice: Appeals as to certain matters in pending bankruptcy proceedings were still possible by reason of the saving clause in the Bankruptcy Repeal Act, and the time fixed by statute for taking such appeals was a lesser period than six months. See sections 4980, 4981, R.S. 1878; Act June 7, 1878, 20 Stat. 99, c. 160; Duff v. Carrier, 55 F. 433, 5 C.C.A. 177.
Third. The act of September 6, 1916, is of a composite nature, containing sections relating to the Circuit Courts of Appeals as well as to the Supreme Court, and it is hardly to be supposed that, if Congress intended to lessen the time for bringing causes for review to the Circuit Courts of Appeals, it would have done so by the indirect method of inference suggested by the defendant in error, rather than by the direct method of clear and positive statement.
The writ of error in the case at bar was sued out within six months after the...
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