Old Nick Williams Co. v. United States

• Decision Date: 12 April 1907
• Docket Number: 709.
• Citation: 152 F. 925
• Parties: OLD NICK WILLIAMS CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

152 F. 925

OLD NICK WILLIAMS CO. v. UNITED STATES.

No. 709.

United States Court of Appeals, Fourth Circuit.

April 12, 1907

Charles A. Moore and William P. Bynum, Jr. (E. T. Cansler, Thomas Settle, and J. E. Alexander, on the brief), for plaintiff in error.

A. E Holton, U.S. Atty.

Before PRITCHARD, Circuit Judge, and MORRIS and DAYTON, District judges.

MORRIS District Judge.

This is a motion to dismiss the writ of error because not sued out within six months after the entry of the judgment.

It arises in the case of an indictment against the Old Nick Williams Company, a corporation which was authorized to carry on the business of a rectifier, and which by the verdict of a jury was convicted of violating the second paragraph of section 3317 of the Revised Statutes (U.S. Comp. St. 1901, p 2164), being found guilty of carrying on the business of a rectifier with intent to defraud the United States of the tax on the spirits rectified by it. On November 28, 1905, the jury rendered its verdict, and on the same day the defendant moved in arrest of judgment, which motion was overruled. The defendant then moved to set aside the verdict and for a new trial, which motion was also overruled. The attorney for the United States then prayed the judgment of the court, and on the same day, November 28, 1905, the court entered its judgment by which it sentenced the defendant to pay a fine of $5,000 and be taxed with the costs.

It thus appears from the record that the judgment was entered November 28, 1905. On the same day it was ordered that the defendant have ninety days to prepare its bill of exceptions and that the attorney for the United States have 30 days after being served with the defendant's bill of exceptions to prepare any objections thereto, and that the court would settle the bill of exceptions upon 10 days' notice to the attorneys of the parties, and, when filed, the bill of exceptions should be deemed as made in apt time. Afterwards, January 17, 1906, by consent of the parties, the court by its order further extended the time for preparing and filing the defendant's bill of exceptions to March 15, 1906, and afterwards, in like manner, the time was extended to April 1, 1906. On July 27, 1906, the court over the objection and protest of the attorney for the United States made an order which recited that the defendant had filed with the clerk its bill of exceptions to which the attorney for the United States had filed certain objections and proposed amendments, so that the bill of exceptions had not been settled and signed by the court within six months from the date of the entry of the judgment, and, the court being of opinion that the defendant was entitled under the circumstances to have the bill of exceptions settled and a writ of error and citation issued and served nunc pro tunc as within the time required by law to procure a review of the judgment, the said order of the court directed that the attorneys should appear before him at Greensboro on August 7 1906, to have the bill of exceptions settled and signed by the court, and further ordered that, when the bill of exceptions was settled and signed and after a petition for a writ of error and assignments of error had been filed by the defendant, a writ of error and citation in due form should be issued and served, all to bear date as of the 15th April, 1906, said date being the date on which the defendant filed its proposed bill of exceptions with the clerk and which was within six months from the entry of the judgment. Thereafter, on September 12, 1906, the defendant having presented its petition for the allowance of the writ of error and its assignment of errors, the court signed an order allowing the writ of error, and directed that the writ of error and citation when issued bear date April 15, 1906, as theretofore ordered by the court. Thereupon the writ of error was issued on September 12, 1906, as of April 15, 1906, as ordered by the trial judge. The attorney for the United States now moves to dismiss the writ of error because not sued out within six months after the entry of the judgment.

The statute restricting the time for writs of error in such cases is section 11, Act Cong. March 3, 1891, c. 517, 26 Stat. 829 (U.S. Comp. St. 1901, p. 552), and reads:

'Sec. 11. 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.'

It has been so frequently and so uniformly decided that the limit of time after the entry of the judgment for the issuing of writs of error admits of no extension that the rule is now firmly established.

In Brooks v. Norris, 11 How. 204, 13 L.Ed. 665, the Supreme Court said:

'The writ of error is not brought in the legal meaning of the term 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, and the period of limitation prescribed by the act of Congress must be calculated accordingly. The day on which the writ may have been issued by the clerk or the day on which it is tested are not material in deciding the question.'

In Polleys v. Black River Co., 113 U.S. 81, 5 Sup.Ct. 369, 28 L.Ed. 938, it was held that the plaintiff in error had a right to his writ on the day the judgment was entered and on that day the time within which his right existed began to run. Scarborough v. Pargoud, 108 U.S. 567, 2 Sup.Ct. 877, 27 L.Ed. 824; U.S. v. Baxter, 51 F. 624, 2 C.C.A. 410; Stevens v. Clark, 62 F. 321, 10 C.C.A. 379.

In Credit Co. v. Ark. Cent. Ry., 128 U.S. 258-261, 9 Sup.Ct. 107, 32 L.Ed. 448, it was held that, although the appeal had been allowed and the bond for costs approved and the citation signed by a Supreme Court justice within the time prescribed by law, yet because the papers were not filed with the clerk until five days after the time expired, the appeal was too late. The court said:

'The attempt made in this case to anticipate the actual time of

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