Mutual Life Ins. Co. v. Phinney

• Decision Date: 26 October 1896
• Docket Number: 274.
• Citation: 76 F. 617
• Parties: MUTUAL LIFE INS. CO. v. PHINNEY.
• Court: U.S. Court of Appeals — Ninth Circuit

76 F. 617

MUTUAL LIFE INS. CO. v. PHINNEY.

No. 274.

United States Court of Appeals, Ninth Circuit.

October 26, 1896

Edw. L Short, Strudwick & Peters, and Stratton, Lewis & Gilman, for plaintiff in error.

Lorenzo S. B. Sawyer, Stanton Warburton, and A. F. Burleigh, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS Circuit Judge.

We are prevented from considering the interesting questions of law arising upon the merits of this case by the fact that the record fails to show that the writ of error sued out herein was filed in the court below.

It is among other things, provided by the act of congress creating the circuit courts of appeals, and defining their jurisdiction, that 'no appeal or writ of error by which any order, judgment, or decree may be reviewed in the circuit courts 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,' and that 'all provisions of law now in force regulating the methods and system of review through appeals or writs of error shall regulate the methods and system of appeals and writs of error provided for in this act in respect of the circuit courts of appeals, including all provisions for bonds or other securities to be required and taken on such appeals and writs of error. ' Act March 3, 1891, Sec. 11 (26 Stat. 826-829).

The writ of error is the writ of the appellate court, and it has long been well settled that it is not brought or sued out within the meaning of the statute providing that means of reviewing a judgment at law, until it is filed in the court which rendered the judgment. 'It is the filing of the writ that removes the record from the inferior to the appellate court,' is the declaration of the supreme court as early as the year 1850, and which has been repeated in numerous cases. Brooks v. Norris, 11 How. 203-207; Mussina v. Cavazos, 6 Wall. 355; Scarborough v. Pargoud, 108 U.S. 567, 2 Sup.Ct. 877; Polleys v. Improvement Co., 113 U.S. 81, 5 Sup.Ct. 369; Credit Co. v. Arkansas Cent. Ry. Co., 128 U.S. 260, 9 Sup.Ct. 107. See, also, Warner v. Railroad Co., 4 C.C.A. 670, 54 F. 920; Stevens v. Clark, 10 C.C.A. 379, 62 F. 321. As the filing of the writ in the court below is essential to the transfer of the jurisdiction of the case from that court to this, it is clear that, until that is done, this court is without jurisdiction to entertain the case.

Upon the writ of error found in the record is this indorsement:

'Received a true copy of the foregoing writ of error for defendant in error. Dated this 14th day of December, 1895.

'A. Reeves Ayres, Clerk of the United States Circuit Court for the

Ninth Circuit, District of Washington,

'By R. M. Hopkins, Deputy Clerk.'

This is the only thing in the printed record to indicate that the writ of error ever reached the clerk of the court below, the statement being that the clerk received a copy of the writ 'for the defendant in error.' This was but the statutory mode of serving the writ on the adverse party, pursuant to the provisions of section 1007 of the Revised Statutes, which reads:

'In any case where a writ of error may be a supersedeas, the defendant may obtain such supersedeas by serving the writ of error by lodging a copy thereof for the adverse party in the clerk's office where the record remains within sixty days, Sundays exclusive, after the rendering of the judgment complained of, and giving the security required by law on the issuing of the citation, but if he desires to stay process on the judgment, he may, having served his writ of error as aforesaid, give the security required by law within sixty days after the rendition of such judgment, or afterward with the permission of a justice or judge of the appellate court. And in such cases, where a writ of error may be a supersedeas, executions shall not issue until the expiration of (the said term of sixty) (ten) days.'

Such lodgment of a copy of the writ with the clerk for the defendant in error does not do away with or take the place of the essential requirement of filing the writ in the court below, without which the appellate court acquires no jurisdiction of the case. The writ of error, as held by the supreme court in Hodge v. Williams, 22 How. 87, is not mere matter of form, but matter of substance, prescribed by law, and essential to the jurisdiction of the appellate court. That the latter court has no appellate power over the judgment of the trial court unless that judgment is brought up in the manner provided by the act of congress is thoroughly settled. And that the writ here in question was not filed in the court below not only appears from an inspection of the original writ, which has been sent, as it should have been, with the record to this court, but the same fact also appears (although in a negative form) from a certified copy of the law register of the court below, which has been presented and filed on this motion, and from one of the affidavits of the deputy clerk of the court below having charge of the office from which the record comes. In this affidavit, while the deputy clerk states that one of the attorneys for the plaintiff in error filed with him the original writ of error, it is manifest, on reading and considering the entire affidavit, that that was only the affiant's construction of what was done. After stating that one of the attorneys for the plaintiff in error 'delivered to and lodged and filed with me' the original writ, with the allowance thereof indorsed thereon by the judge, and at the same time 'delivered to and lodged and filed' with him a copy of the writ for the use of the defendant in error, the affidavit proceeds:

'That said original writ of error remained in my office and in my custody from said 14th day of December, 1895, until the 4th day of January, 1896, at which time I transmitted the same, with my return thereto, to this honorable court. That the original citation herein, a copy of which appears on pages 395 and 396 of the printed record herein, was returned to and filed with me by a deputy marshal of the United States for the district of Washington on the 18th day of December, 1895, and the same remained in my office, and in my custody and control, from said date until the same was transmitted to this honorable court, together with the writ of error and return thereto, on the 4th day of January, 1896. It has not been my custom to indorse original citations and writs of error at the time they are filed with or served upon me, for the reason that I have deemed the same as writs of the circuit court of appeals, to be indorsed by the clerk of said court upon his receipt of the same with my return thereto; but, as a matter of fact, the writ of error and citation herein were actually delivered to and filed and lodged with me, as above stated.'

It is quite evident, we think, from this affidavit, as well as from the copy of the law register of the court below, that the actual fact is not inconsistent with the record as presented, which fails to show that the writ of error was there filed.

It is urged on behalf of the plaintiff in error that, as the original writ was left or lodged with the clerk, it was, in legal effect, filed in the court; that the indorsement is but the evidence of the filing; and that, as the original writ was, in fact, left or lodged with the clerk, it was as much filed in the court as if it had been indorsed as filed by him.

It may be that in some instances and for some purposes the mere deposit of a paper by a party or his attorney with the clerk of the court, and his receipt thereof, of itself constitutes a 'filing.' The case of Tregambo v. Mining Co., 57 Cal. 501, relied upon, among others, by the plaintiff in error, presented the question of the entry of the default of the defendant to the suit under these circumstances: The attorneys of the parties to the action reside in Bodie, 20 miles away from the county seat of Mono county, at which place was the office of the clerk of the court. On the 20th of April, 1879, the defendant's attorneys forwarded to the clerk of the court, to be filed, certain demurrers to the complaint, copies of which had been served on the plaintiff's attorneys, together with notice that the demurrers would be called for argument on May 2, 1879. The demurrers were regularly delivered to the clerk of the court on April 29, 1879. He received them without demanding his fees for filing them, but about 6 o'clock p.m. of May 1, 1879, defendant's attorneys received a letter from the clerk, informing them that he demanded payment of his fees for filing the demurrers. On the morning of the 2d of May, defendant's attorneys left Bodie for the county seat, and arrived there the same day about noon. Immediately upon their arrival, they tendered to the clerk his fees, but he refused to receive them, because he was then in the act of entering the defendant's default for not answering. The court said:

'We think the district court should have set aside a default under such circumstances. When the demurrers were placed in the custody of the clerk, he had a legal right to refuse to file them, unless the fees for that service were paid to him. Cal. Codes (Sts. in Force) Sec. 765; Pol. Code Cal. Sec. 4332. But

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