Payne v. Garth, 5785.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
PartiesPAYNE, Director General of Railroads, v. GARTH et al.
Decision Date02 November 1922
Docket Number5785.

285 F. 301

PAYNE, Director General of Railroads,
v.

GARTH et al.

No. 5785.

United States Court of Appeals, Eighth Circuit.

November 2, 1922


[285 F. 302]

Wymer Dressler, of Omaha, Neb. (Robert D. Neely and Paul S. Topping, both of Omaha, Neb., on the brief), for plaintiff in error.

Alfred G. Ellick, of Omaha, Neb. (Hird Stryker, Francis A. Brogan, and Anan Raymond, all of Omaha, Neb., on the brief), for defendants in error.

Before HOOK and STONE, Circuit Judges, and TRIEBER, District Judge.

STONE, Circuit Judge.

From a judgment favoring plaintiffs in an action to recover damages to a shipment of cattle because of negligent lack of care en route and delay, defendant has sued this writ of error.

Defendants in error present a motion to dismiss the writ because not filed within six months of the entry of judgment. Determination of the motion depends upon the effect of a motion for new trial filed in the case. Under the practice in Nebraska, judgment is entered following the verdict, so that motions for new trial are filed after the entry of judgment. The September term, 1919, expired April 3, 1920. During this term, November 8, judgment was entered. January 2, 1920, plaintiff in error presented his motion for new trial for filing. At that time and for several years prior thereto, there was a, so-called, rule of court requiring leave of court to file motions for new trial. At that time and for some time thereafter, the judge was absent from the state on official business. When first presented, filing of the motion was refused by the clerk because of the above rule. However, upon insistence of counsel, it was filed on the above date. The court, apparently, had no knowledge that such motion had been filed, until after the term had ended. During the April, 1920, term, April 29, 1920, application was made for leave to file a motion for new trial which was granted and the earlier motion was refiled. Defendants in error filed a motion to strike these motions for new trial. The court denied the motion to strike. In denying this motion the court expressly disclaimed any intention to relax or suspend the above rule in this particular case, saying:

'The court does not intend by this order to abrogate in any way the standing order of this court concerning the filing of motions for new trial if the [285 F. 303] same is not abrogated by the statutes of the United States, but finds that said order is contrary to section 1246 of the Compiled Statutes of the United States for the year 1916.'

The section intended is 269 of the Judicial Code (Comp. St. Sec. 1246), which is as follows:

'All of the said courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law.'

The point presented by the motion to dismiss is jurisdictional. There is no dispute between counsel as to the proposition that a motion for new trial, filed during the judgment term, may toll the beginning of the six-month period for suing out a writ of error to the time when that motion is determined, even though such determination be in a subsequent term. However, defendants in error insist that such motion has no such effect unless it is 'entertained' (recognized in some manner) by the court during the judgment term. They also urge that the court rule is valid and applicable and that the filing, within the judgment term, was in violation of this rule.

We will consider the first of the above contentions of the defendants in error. This consideration will be irrespective of the effect of any court rule-- that matter being reserved for subsequent discussion. We eliminate from consideration the second motion for new trial because it was filed after the judgment term and the court had then lost all power to permit it to be then filed. Even consent of parties and acceptance by the court and consideration of a motion filed after the term is ineffective because the jurisdiction of a court over its judgments, unless carried over by action or motion within the term, ceases with the termination of the judgment term. U.S. v. Mayer, 235 U.S. 55, 35 Sup.Ct. 16, 59 L.Ed. 129. There is no dispute that the first motion for new trial was filed during the judgment term. In the order overruling the motion to strike, the court, in speaking of this first motion for new trial, said:

'Said motion for new trial was not called to the attention of the court during said September, 1919, term, nor was said motion in any way considered, entertained, or recognized by the court during the said September, 1919, term and no order was made by the court during said term in respect thereto.'

Further, no aid can, in this respect, be gained by the action of the court in permitting the second motion (a duplicate of the first) to be filed. This is true because the court had no intention or purpose to affect the earlier motion in any way. He says:

'At the time of this application no reference was made by defendant to the motion previously filed.'

It is, therefore, clear that the court took no action whatsoever concerning this motion during the judgment term. It is the contention of defendants in error that, in order to carry the motion over the term, it was necessary that the court 'affirmatively recognizes the motion during the trial term by some action indicating willingness to consider it. ' It bases this contention upon expressions in several Supreme Court decisions to the effect that, to carry such motions over, they [285 F. 304] must be 'filed and entertained' during the judgment term. The cases so relied on are Brockett v. Brockett, 2 How. 238, 11 L.Ed. 251; Cambuston v. U.S., 95 U.S. 285, 287, 24 L.Ed. 448; Texas & Pacific Ry. Co. v. Murphy, 111 U.S. 488, 4 Sup.Ct. 497, 28 L.Ed. 492; Voorhees v. Noye Mfg. Co., 151 U.S. 135, 14 Sup.Ct. 295, 38 L.Ed. 101; Aspen M. & S. Co. v. Billings, 150 U.S. 31, 36, 14 Sup.Ct. 4, 37 L.Ed. 986; Kingman v. Western Mfg. Co., 170 U.S. 675, 678, 18 Sup.Ct. 786, 42 L.Ed. 1192. He also cites Linder v. Lewis (D.C.) 1 Fed. 378; In re Worcester County, 102 F. 808, 42 C.C.A. 637; Klein v. Southern Pacific Co. (C.C.) 140 F. 213, and two cases from this court, Walker v. Moser, 117 F. 230, 54 C.C.A. 262, and Sanborn v. Bay, 194 F. 37, 42, 114 C.C.A. 57. Many of these cases contain the expression that (to toll the time for suing out error beyond the judgment term) the motion for new trial must be 'filed and entertained.' The same is true of other cases, not cited, including Cherokee Nation v. Whitmire, 223 U.S. 108, 111, 32 Sup.Ct. 200, 56 L.Ed. 370, and U.S. v. Ellicott, 223 U.S. 524, 539, 32 Sup.Ct. 334, 56 L.Ed. 535. From such expressions in these cases, defendants in error reach the rather natural conclusion that something beyond the mere filing, during the trial term, of the motion was necessary. Otherwise, why the continued reiteration of the expression 'and entertained'? They urge, therefore, that 'entertained' must have a meaning and that the only logical or possible meaning is that 'entertained' means some affirmative recognition of the motion during the judgment term. The argument is plausible and would be readily convincing if it were not for the statute above quoted. This statute unquestionably gives a right, in jury cases, to the consideration and determination of a motion for new trial. Necessarily, this right includes the filing of the motion. When the motion is filed, the litigant can do nothing more except to present it when the court is pleased to hear it. The litigant has no control over the action of the court toward the motion. He cannot compel the court to act affirmatively concerning it or to recognize it during the judgment term. Can he, then, be denied all benefit of the right given by Congress because the court fails or refuses to take such action? Can a court thus annul a valid statute affecting vitally the rights of litigants? Yet, if defendants in error be right in their argument and contention, this result may follow and would do so in this case.

It is this situation which impairs the position of defendants in error and requires examination of the authorities to ascertain what they mean. Expressions, in opinions, as elsewhere, must be interpreted in connection with the circumstances or facts and the issues concerning which they were uttered.

Brockett v. Brockett, supra, was an equity case in which, a few days after a decree had been entered, a petition was filed to open the decree for certain purposes. The court referred this petition to a master who reported thereon within a short time. The court considered the report and refused to open the decree. All of the above actions occurred during the term at which the decree was entered. From the refusal to open the decree as well as from the decree itself an appeal was taken. [285 F. 305]

The point presented to the Supreme Court was that the appeal could not operate as a supersedeas because, to have such effect, it should be made and the bond given within ten days after the final decree and that the final decree was of the date of its entry, for this purpose. The entire expression of the court thereon was:

'But the short and conclusive answer to this objection is, that the final decree of the 10th of May was suspended by the subsequent action of the court; and it did not take effect until the 9th of June, and that the appeal was duly taken and the appeal bond given within ten days from this last period.'

There can be no doubt of the complete control of the court over its decrees and judgments, during the term at which such are entered. The sole matter before the court was whether consideration of a petition to open the decree suspended the date (for appeal and supersedeas purposes) of the decree until that petition had been determined. That is different from the question here presented of...

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18 practice notes
  • City of Greenwood v. Humphrey & Co., Inc, 32224
    • United States
    • United States State Supreme Court of Mississippi
    • May 23, 1938
    ...Hughes Federal Practice, sec. 239; Grover & B. S. M. Co. v. Florence S. M. Co., 21 L.Ed. 914; Aekerson v. U.S. 15 F.2d 268; Payne v. Garth, 285 F. 301; Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 39 L.Ed. 759, 15 S.Ct. 673; Pacific S. S. Co. v. Peterson, 278 U.S. 130, 73 L.Ed. 220, ......
  • Southland Industries v. Federal Communications Com'n, No. 7018.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 15, 1938
    ...by the Commission, and, consequently, did not constitute a bar to an appeal.6 A similar contention was made in Payne v. Garth, 8 Cir., 285 F. 301, and it was there further contended that it must appear that the 99 F.2d 121 court "affirmatively recognizes the motion during the trial term by ......
  • Denholm & McKay Co. v. Commissioner of Int. Rev., No. 3797.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 14, 1942
    ...States v. Seminole Nation, supra; Bowman v. Lopereno, 1940, 311 U.S. 262, 266, 61 S.Ct. 201, 85 L.Ed. 177; Payne v. Garth, 8 Cir., 1922, 285 F. 301, 309. When the published rules of the court permit the filing of a petition for rehearing within a stated period, that means that the court wil......
  • United States v. French, No. 10962.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 6, 1938
    ...a rule of court does not have to be written and formally adopted but may be established by long-continued usage. Payne v. Garth, 8 Cir., 285 F. 301, 309. However, the trouble here is that there is a written and formally adopted rule. Obviously, such a rule cannot be nullified by a custom in......
  • Request a trial to view additional results
18 cases
  • City of Greenwood v. Humphrey & Co., Inc, 32224
    • United States
    • United States State Supreme Court of Mississippi
    • May 23, 1938
    ...Hughes Federal Practice, sec. 239; Grover & B. S. M. Co. v. Florence S. M. Co., 21 L.Ed. 914; Aekerson v. U.S. 15 F.2d 268; Payne v. Garth, 285 F. 301; Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 39 L.Ed. 759, 15 S.Ct. 673; Pacific S. S. Co. v. Peterson, 278 U.S. 130, 73 L.Ed. 220, ......
  • Southland Industries v. Federal Communications Com'n, No. 7018.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 15, 1938
    ...by the Commission, and, consequently, did not constitute a bar to an appeal.6 A similar contention was made in Payne v. Garth, 8 Cir., 285 F. 301, and it was there further contended that it must appear that the 99 F.2d 121 court "affirmatively recognizes the motion during the trial term by ......
  • Denholm & McKay Co. v. Commissioner of Int. Rev., No. 3797.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 14, 1942
    ...States v. Seminole Nation, supra; Bowman v. Lopereno, 1940, 311 U.S. 262, 266, 61 S.Ct. 201, 85 L.Ed. 177; Payne v. Garth, 8 Cir., 1922, 285 F. 301, 309. When the published rules of the court permit the filing of a petition for rehearing within a stated period, that means that the court wil......
  • United States v. French, No. 10962.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 6, 1938
    ...a rule of court does not have to be written and formally adopted but may be established by long-continued usage. Payne v. Garth, 8 Cir., 285 F. 301, 309. However, the trouble here is that there is a written and formally adopted rule. Obviously, such a rule cannot be nullified by a custom in......
  • Request a trial to view additional results

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