Noland v. United States, 8702.
| Decision Date | 22 November 1937 |
| Docket Number | No. 8702.,8702. |
| Citation | 92 F.2d 820 |
| Parties | NOLAND v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frank J. Hennessy, U. S. Atty., and S. P. Murman, Asst. U. S. Atty., both of San Francisco, Cal.
Raine Ewell, of San Francisco, Cal., for respondent.
Before WILBUR, STEPHENS, and HEALY, Circuit Judges.
The appellee moves to docket and dismiss the appeal herein upon the ground that the period for the settlement of the bill of exceptions has expired, and that the bill has not yet been settled; and also upon the ground that the assignments of error have not been presented within the time allowed by law.
Appellee relies upon a certificate of the clerk of the District Court setting out the following docket entries: The second order dated October 13, 1937, was made within the period of 30 days, plus Sundays and holidays, after the appeal was taken, so that according to the certificate if we consider the first order (of September 11), and the second order (of October 13), both made within 30 days, plus Sundays and holidays, after appeal was taken, as supplementary, the time for filing the proposed bill of exceptions and for its settlement was properly extended until 30 days from October 14, 1937.
The appellee contends that, when the court made its order of September 11, 1937, fixing the time for the presentation of the bill of exceptions and the assignments of error, it exhausted its power to grant further extensions even within the 30-day period fixed by the rule of the Supreme Court within which the court was at liberty to exercise its discretion in fixing a time for the presentation of the assignments of error and proposed bill of exceptions and the settlement thereof.
The appellant states upon argument that he has presented a proposed bill of exceptions to the court within the time fixed by the order of October 13th, and is proceeding to procure a settlement of the bill of exceptions. The failure to settle or file a bill of exceptions is not a ground upon which to dismiss an appeal. Harris v. Moreland Motor Truck Co. (C.C.A...
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