Midland Terminal Ry. Co. v. Warinner

Decision Date12 November 1923
Docket Number6337.
Citation294 F. 185
CourtU.S. Court of Appeals — Eighth Circuit

C. C Hamlin, of Colorado Springs, Colo. (H. J. McCoy, of Colorado Springs, Colo., on the brief), for plaintiffs in error.

Martin J. O'Donnell, of Kansas City, Mo., and William A. Hill of Denver, Colo. (George H. Kelly, William Buchholz, and I B. Kimbrell, all of Kansas City, Mo., on the brief), for defendant in error.

Before STONE and LEWIS, Circuit Judges, and VAN VALKENBURGH District judge.

STONE Circuit Judge.

This is a writ of error from a judgment awarding damages for personal injuries. No attack is made here on the liability for the injury but the challenge is aimed at the measure and the amount of damages.

Before we can reach consideration of the merits of the above challenge, we must determine several motions filed in this court. To understand these motions, it is necessary to set forth the proceedings in the trial court in connection with the judgments, writs of error and bills of exceptions. For convenience, plaintiffs in error will be referred to as the companies and the defendant in error by name. On September 13, 1922, judgment was entered upon a verdict; on the same date, the companies were allowed 15 days to file motion for new trial and 60 days to file bill of exceptions; on September 25, the companies filed, in the trial court, their assignments of errors and petition for writ of error to this court, an order allowing the writ was entered, supersedeas bond thereon approved and filed, the writ and citation issued; September 27, motion for new trial was filed; October 9, the above citation was filed; November 9, bill of exceptions approved and filed and an order made extending return day of citation on the above writ of error for 60 days; November 24, the motion for new trial was heard and denied; December 1, the motion for new trial was denied on condition that Warinner enter a remittitur reducing the judgment from $12,266.50 to $10,500; December 18, Warinner, 'objecting and excepting' to the action of the court in entertaining or passing upon the motion for new trial because of lack of jurisdiction to entertain or consider such motion, filed the required remittitur; December 26, motion for new trial denied and judgment entered upon the remittitur; January 4, 1923, the companies filed, in the trial court, their assignment of errors and petition for writ of error to this court from the judgment entered on the remittitur on December 26, an order allowing the writ was entered, the writ issued, supersedeas bond approved and filed and citation issued; January 8, motion praying withdrawal of bill of exceptions (theretofore filed) filed and sustained, the bill of exceptions ordered 'permanently' withdrawn and the companies given 60 days to file bill of exceptions; February 8, bill of exceptions approved and filed; March 1, return day of citation on second writ of error extended 60 days; April 12, record filed in this court.

The above outline reveals that two judgments were entered (one on the verdict and one on the remittitur); two writs of error were allowed and two bills of exceptions (the first withdrawn later) approved and filed. In justice to the trial court, it should be stated that various of the above orders were made by different judges who probably were not thoroughly informed as to the different steps theretofore taken. The writ of error before us is that allowed January 4, 1923, and the bill of exceptions contained in the transcript is that approved and filed February 8, 1923.

Warinner filed here three motions as follows: (1) To dismiss the writ of error allowed January 4, 1923; (2) to dismiss the writ of error allowed September 25, 1922, or to affirm the judgment entered September 13, 1922; (3) to strike the bill of exceptions from the record. Thereafter, the companies filed their motion to docket the case on the writ of error allowed September 25, 1922, 'and upon the record filed in this court as aforesaid on April 12, 1923.'

The contentions of Warinner upon his motions are that the first writ of error was perfected; that it transferred jurisdiction from the trial court except in so far as necessary to complete the record on the writ; that, therefore, there was no jurisdiction in the trial court to consider the motion for new trial, to alter the first judgment, to allow a second writ of error or, after expiration of the 60 days given therefor on September 13, 1922, to approve a bill of exceptions. The companies say: 'It is the contention of the plaintiffs in error that both writs were properly allowed, and that both writs are before this court for consideration; that the court acted within its jurisdiction in entering the judgment of January 4, 1923, and that citation was properly issued thereon, and that even if this be not true, the case is before the court on the writ of error and citation issued on the original judgment.'

As all steps in these writs of error took place in the trial court, we are not concerned with the situation where such are the orders or results of orders of an appellate court or an appellate justice or judge.

The applicable law is as follows:

(1) Before an appeal or writ of error has been perfected, the trial court has jurisdiction to vacate the incomplete appeal or writ of error and thereafter proceed as though such steps toward appellate review had not been taken. Cherokee Nation v. Whitmire, 223 U.S. 109, 32 Sup.Ct. 200, 56 L.Ed. 370; Aspen M. & S. Co. v. Billings, 150 U.S. 31, 35, 14 Sup.Ct. 4, 37 L.Ed. 986; Brandies v. Cochrane, 105 U.S. 262, 26 L.Ed. 989; Goddard v. Ordway, 101 U.S. 745, 752, 25 L.Ed. 1040.

(2) After an appeal or writ of error has been perfected but has 'spent its force' (Evans v. Bank, 134 U.S. 330, 10 Sup.Ct. 493, 33 L.Ed. 917) or has clearly been abandoned (Gould v. U.S., 205 F. 883, 123 C.C.A. 480, this court), the trial court may, within proper time after entry of the judgment or decree to be reviewed, allow another appeal or writ of error.

(3) While an appeal or writ of error, which has been perfected is in force all jurisdiction over the case is transferred from the trial to the appellate court (Hovey v. McDonald, 109 U.S. 150, 3 Sup.Ct. 136, 27 L.Ed. 888; Keyser v. Farr, 105 U.S. 265, 26 L.Ed. 1025; Draper v. Davis, 102 U.S. 370, 26 L.Ed. 121; Cochran v. Becker (C.C.A.) 276 F. 280, 283, in this court; Citizens' Bank v. Farwell, 56 F. 539, 6 C.C.A. 30, in this court; McKay v. Neussler, 148 F. 86, 88, 78 C.C.A. 154, 9th Circuit; In re Gustin (D.C. Michigan) 281 F. 320; Purman v. Marsh, 49 App.D.C. 125, 261 F. 1005; Kendrick v. Roberts (D.C. Georgia) 214 F. 268; St. L. & S.F.R. Co. v. Loughmiller (D.C. Oklahoma) 193 F. 689, 694; Clarke v. Bank (D.C. Nevada) 131 F. 145; Morrin v. Lawler (C.C. New York) 91 F. 693; see, also, Anderson v. Comptois, 109 F. 971, 975, 48...

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