Sanborn v. Bay

• Decision Date: 11 December 1911
• Docket Number: 3,660.
• Citation: 194 F. 37
• Parties: SANBORN v. BAY.
• Court: U.S. Court of Appeals — Eighth Circuit

194 F. 37

SANBORN v. BAY.

No. 3,660.

United States Court of Appeals, Eighth Circuit.

December 11, 1911

Joe Kirby, for the motion.

C. P Bates and E. R. Winans, opposed.

Before ADAMS and SMITH, Circuit Judges, and Circuit Judges, and REED, District Judge.

ADAMS Circuit Judge.

This case was tried and judgment rendered on November 1, 1910, at the October term of the Circuit Court for the District of South Dakota, by Carland, then District Judge for that district. After Judge Carland's appointment as Circuit Judge and designation to serve a term in the Court of Commerce, Judge Willard, the District Judge for the District of Minnesota, was by order of the senior Circuit Judge of this circuit designated and appointed to act as District Judge for the District of South Dakota until the appointment and qualification of Judge Carland's successor. On March 24, 1911, at the instance of the plaintiff in error, Judge Willard, who was then presiding in the Circuit Court pursuant to his designation and appointment, allowed and signed a bill of exceptions in this case which both parties had agreed to as correct.

It is now claimed that Judge Willard had no power to perform those acts, and a motion is made to suppress the bill of exceptions and dismiss the writ of error.

Section 953 of the Revised Statutes provides that:

'A bill of exceptions allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presiding judge thereof, if more than one judge sat on the trial of the cause.'

By an act approved June 5, 1900 (31 Stat. 270 (U.S. Comp. St. 1901 p. 696)), that section was amended by adding the following:

'And in case the judge before whom the cause has heretofore been or may hereafter be tried is, by reason of death, sickness, or other disability, unable to hear and pass upon the motion for a new trial and allow and sign the bill of exceptions, then the judge who succeeds such trial judge, or any other judge of the court in which the cause was tried, holding such court thereafter, if the evidence in such cause has been or is taken in stenographic notes, or if the said judge is satisfied by any other means that he can pass upon such motion and allow a true bill of exceptions, shall pass upon said motion and allow and sign such bill of exceptions; and his ruling upon such motion and allowance and signing of such bill of exceptions shall be as valid as if such ruling and allowance and signing of such bill of exceptions had been made by the judge before whom such cause was tried. * * *'

Was there any such disability on the part of Judge Carland as authorized his successor, Judge Willard, to sign and allow the bill of exceptions in question?

When Judge Carland was appointed and confirmed Circuit Judge and accepted the position, he ceased to be District Judge of the court over which he presided when this case was tried. This seems to be conceded. The only question is: Did he by becoming a Circuit Judge retain the jurisdiction which before that time he had over the case? By the act approved June 18, 1910 (chapter 309, 36 Stat. pt. 1, p. 539) the Court of Commerce was created. The President was authorized, by and with the advice and consent of the Senate, 'to appoint five additional Circuit Judges * * * who shall hold office during good behavior and who shall be from time to time designated and assigned by the Chief Justice of the United States for service in the Circuit Court for any District, or Circuit Court of Appeals for any Circuit or in the Commerce Court.'

These judges were, in the first instance, to constitute the new Court of Commerce for terms from one to five years each respectively. They were not appointed to be Circuit Judges of any particular circuit. On the contrary, they were appointed to be Circuit Judges, subject to assignment from time to time by the Chief Justice for service either in some Circuit Court, some Circuit Court of Appeals, or in the Court of Commerce. It does not appear that Judge Carland has ever been assigned for service in the Circuit Court for the District of South Dakota, and certainly it does not appear that he had been so assigned prior to March 24, 1911, when Judge Willard allowed and signed the bill of exceptions in this case.

We therefore conclude he then had no power to act judicially in any matters pending or requiring consideration in the court over which he formerly presided; and inasmuch as the allowance and signing of the bill of exceptions is a judicial act (Malony v. Adsit, 175 U.S. 281, 20 Sup.Ct. 115, 44 L.Ed. 163), he had no power to allow or sign it in this case.

The remaining question is: Did this want of power or disqualification amount to a 'disability' within the meaning of the act of June 5, 1900, which enabled Judge Willard, his actual successor, to allow and sign the bill of exceptions in this case? The latter was authorized and empowered to do so only in case the judge who tried the case was 'by reason of death, sickness or other disability unable to allow and sign the same. ' It is contended by defendant in error that the 'other disability' here referred to means a disability of like character to that arising from 'death or sickness' which immediately precede the words 'other disability,' and they cite the case of American Bonding & Trust Co. of Baltimore v. Takahashi, 49 C.C.A. 267, 111 F. 125, in support of their contention. This case involved the question whether the casual or temporary absence of the trial judge from his circuit authorized a judge, assigned to aid or assist him, to allow and sign a bill of exceptions in a case tried before the regular judge himself. It was held in that case that such casual absence did not amount to the 'disability' contemplated by the amended act of June 5, 1900, and some expressions are found in the opinion sustaining the contention of the defendant in error in this case. While we might well agree with the conclusion reached in that particular case, we cannot think the act of 1900 was intended by Congress to limit the 'disqualification' referred to, to one occasioned by physical or mental ailment. This in our opinion would be too narrow a construction. It would not seem to accomplish the legislative purpose or afford the relief which Congress intended to afford by the language actually employed. Inability to perform duty occasioned by death or sickness was obviously not the only disability

It employed a comprehensive term sufficient to cover all Congress had in mind. It employed a comprehensive term sufficient to cover all disqualifications, and we do not think the artificial rule noscitur a sociis invoked by counsel was ever intended to be employed to thwart an obvious purpose. Nothing in fact could create a more effective 'disability' than an utter disqualification of the presiding judge to perform the act which Congress attempted to provide for. We accordingly hold that a voluntary resignation of his office (which is practically the situation in this case) by a trial judge is an effective disqualification within the meaning of the act of 1900.

There is also a motion here to vacate the supersedeas claimed to have been obtained by the bond given on securing this writ of error. A judgment for $25,000 was rendered against the defendant at the October term of the court, on November 1, 1910. At no time thereafter did the defendant invoke the provisions of section 987, Rev. Stat., to secure a stay of execution for 42 days as therein provided, to enable him to file and present a petition for a new trial. On the contrary, he sought and secured a stay of execution for 60 days to enable the parties, in the language of the order, 'to settle their bill of exceptions. ' This stay was extended from time to time for the same expressed purpose until April 1, 1911. The bill of exceptions was allowed, signed, and filed on March 24th, and on March 25th a motion for a new trial was filed, and this was overruled on April 1, 1911, prior to the expiration of the October term. On April 17, 1911, at the next or April term of the court, the writ of error was sued out and a bond in the penal sum of $30,000 given to supersede the execution of the judgment until a hearing could be had in this court. Does this bond so given operate as a supersedeas of the judgment?

Section 1007, Rev. Stat. (U.S. Comp. St. 1901, p. 714), provides that if a proper bond be given on appeal perfected or writ of error sued out and served within 60 days 'after the rendering of the judgment complained of,' a supersedeas may be had. Kitchen v. Randolph, 93 U.S. 86, 23 L.Ed. 810; Logan v. Goodwin, 41 C.C.A. 573, 101 F. 654. If, therefore, the overruling of the motion for a new trial was the 'rendering of the judgment complained of' within the meaning of section 1007, then as the writ of error, accompanied with the proper security, was sued out and duly served within 60 days thereafter, the supersedeas must stand.

It is a well-settled general rule that all orders, judgments, and decrees of federal courts are under the control of the court which rendered them during the term at which they were rendered and may be at any time during that term set aside, vacated, modified, or annulled by the court. Bronson v. Schulten, 104 U.S. 410, 415, 26 L.Ed. 797. For many purposes the overruling of a motion for a new trial is the expression of the final judgment of the court in a given case, and when such a motion is entertained there is no final judgment in the case until it is disposed of.

In Brockett v. Brockett, 2 How. 238, 11 L.Ed. 251, the trial court had rendered a decree against the defendants, and afterwards, during the same term, had entertained a motion to open it up for a certain...