McClellan v. Pyeatt

• Decision Date: 01 February 1892
• Citation: 49 F. 259
• Parties: McCLELLAN et al. v. PYEATT et al.
• Court: U.S. Court of Appeals — Eighth Circuit

49 F. 259

McCLELLAN et al. v. PYEATT et al.

United States Court of Appeals, Eighth Circuit.

February 1, 1892

John H Rogers, for the motion.

George E. Nelson and William M. Cravens, opposed.

Before CALDWELL, Circuit Judge, and SHIRAS and THAYER, District Judges.

THAYER District Judge.

This case comes from the United States court in the Indian Territory. The record shows that final judgment was rendered against the plaintiffs in error on July 8, 1891. On the 29th of July, 1891, a supersedeas bond was presented to the judge of the lower court, which was approved by him on that day and was filed with the clerk of the court on July 31, 1891. On the 15th of August, 1891, a writ of error was allowed and a citation duly signed. The citation was served on one W. T Hutchins, September 10, 1891. A return was made to the writ of error by lodging a transcript of the record in this court on October 12, 1891.

We are asked to dismiss the writ of error mainly on the following grounds: Because the record was not filed in this court, as required by rule 16, 'by or before the return-day;' because no return has been made to this court of the writ of error; because the citation has never been served; and because the bond antedates the writ of error, and is otherwise irregular and defective. It is sufficient to say that, as the cause was docketed and the record filed in this court within 60 days after the citation was signed, we think the first ground of the motion is untenable. The records shows that the writ of error was made returnable on October 7, 1891, whereas the citation issued on the same day admonishes the defendant in error to be and appear in this court 60 days after it bears date; that is, after August 15, 1891. Paragraph 5 of rule 14 requires writs of error and citations to be made returnable 'not exceeding sixty days from the day of signing the citation. ' In view of these facts, we must infer that the return-day stated in the writ was due to oversight; very likely to an error made in the computation of time. The record having been filed within 60 days after the writ was issued, we will not, under such circumstances, hold that there has been any such default as warrants a dismissal of the writ.

The second ground of the motion is likewise untenable. The clerk of the lower court certifies on the writ of error that he 'herewith transmits to the supreme court of the United States a duly-certified transcript of the record,' etc. But the caption of the return, and the fact that the record was lodged in this court, shows conclusively that this was what the court intended. We will ignore such obvious mistakes, which do not tend to prejudice either party.

The third ground of the motion, above stated, has more merit. There is nothing in the record before us to show that W. T Hutchins, upon whom the citation was served, was a person upon whom such service could lawfully be made; and by appearing specially for the purpose of this motion only, the defendant in error has not waived service of the citation. We are assured, however, that service was had upon an attorney who represented ...