Rutherford v. Pennsylvania Mut. Life Ins. Co.

• Decision Date: 12 March 1880
• Citation: 1 F. 456
• Parties: RUTHERFORD v. THE PENN. MUT. LIFE INS. CO.
• Court: U.S. District Court — Eastern District of Missouri

1 F. 456

RUTHERFORD v. THE PENN. MUT. LIFE INS. CO.

United States Circuit Court, E.D. Missouri.

March 12, 1880

A. R Taylor, for plaintiff.

W. H Clopton, for defendant.

McCRARY J., (orally.)

This case presents a question of practice of some importance, in its application to this case as well as others; but it is one upon which I have no difficulty. The question is whether the defendant here has lost its right to a supersedeas on account of the delay which has occurred since the trial of the case.

The statute (Rev. St. Sec. 1007) provides that '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 60 days Sundays exclusive, after the rendering of the judgment complained of, and giving the security required by law on the issuing of the citation. * * * ' And the question arises upon the meaning of the words 'within 60 days, Sundays exclusive, after the rendering of the judgment complained of.'

I apprehend that the statute ought to be construed so as to commence the time from the final judgment. In this court there was a motion made for a new trial in this case, and the order of the court was made suspending the execution until the determination of that motion. The motion for a new trial was made in pursuance of the right which is given by the statute in section 726. I have no doubt of the right of any party to have a motion for a new trial heard under this section: '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. ' In the trial of causes it often happens that in the hurry of the trial questions arise which the court is obliged to pass upon without that consideration which is desirable; and the policy of the law is always to provide ample means to a review or reconsideration of the questions which may arise in the course of a jury trial, and to reserve to the court a right, upon a reconsideration, to set aside the judgment or modify it, if the ends of justice and the law seem to require it. Therefore, I think that, under section 726, the party had a right to make his motion for a new trial.

But there is another section that has been called to my attention-- section 987 of the Revised Statutes. This section still further provides for motions of this character, and it applies to the case where a party is not prepared at the time of trial so immediately file his motion. It provides for giving time within which that may be done. It says: 'When a circuit court enters judgment in a civil action, either upon a verdict or on a finding of the court upon the facts in cases where such finding is allowed execution may, on motion of either party, at the discretion of the court, and on such considerations for the security of the adverse party as it may judge proper, be stayed 42 days from the time of entering judgment, to give time to file in the clerk's office of said court a petition for a new trial. ' * * * And then follows a provision, that 'if such petition is filed within said term of 42 days, with a certificate thereon from any judge of such court that he allows it to be filed, which certificate he may make or refuse, at his discretion, execution shall, of course, be further stayed to the next session of...