Simpson v. First Nat. Bank

• Decision Date: 22 March 1904
• Docket Number: 1,829.,1,828
• Parties: SIMPSON v. FIRST NAT. BANK OF DENVER. FIRST NAT. BANK OF DENVER v. SIMPSON.
• Court: U.S. Court of Appeals — Eighth Circuit

129 F. 257

SIMPSON v. FIRST NAT. BANK OF DENVER.

FIRST NAT. BANK OF DENVER v. SIMPSON.

No. 1,828, 1,829.

United States Court of Appeals, Eighth Circuit.

March 22, 1904

Syllabus by the Court

The filing of an assignment of errors before or at the time of the allowance of an appeal is indispensable, under the eleventh rule of the Circuit Courts of Appeals (91 Fed.vi 32, C.C.A. lxxxviii), and the appeal will be dismissed if the assignment is not thus filed.

An allowance of an appeal on condition that the petitioner give a bond in a fixed amount does not become an allowance of the appeal until the bond is given and accepted, and the filing of an assignment of errors before or at the time of the giving and acceptance of the bond is a filing within the time prescribed by the rule.

An appeal is a matter of right, secured by act of Congress upon compliance with the statutes relative to security and with the rules of the courts.

The allowance of a writ of error is a matter for judicial determination upon a consideration of the sufficiency of the grounds for the writ stated in the petition and assignment of errors.

The reason for the rule requiring the filing of an assignment of errors before the allowance of an appeal is to give notice to opposing counsel and the appellate court of the questions of law to be discussed. In an action at law there is the additional reason that the presentation of an assignment of errors to the judge who allows or issues a writ of error is essential to his decision of the question whether or not it should be issued.

The introduction in evidence without qualification of an account containing debt and credit items makes each side evidence of its contents.

In the absence of all other evidence, the debits and credits of such an account offset each other, and the account proves its balance only. An admission must be taken with its qualifications as an entirety.

But where there is other evidence the court or jury is not required to give equal credit to each side of the account, to the admissions against interest, and to the self-serving statements contained in it. They may, and they should determine the fact for or against the evidence contained in the account as the preponderance of all the evidence in the case and the rules of law require.

Simon M. Simpson exhibited his bill against the First National Bank of Denver to procure an accounting from it of the proceeds of certain personal property, which he averred that he had pledged to the bank to secure his indebtedness to it. The bank denied that a portion of the goods were pledged, and alleged that its cashier had bought and paid for them. A decree to that effect was rendered in the court below, and this suit was dismissed. Upon an appeal to this court that decree was reversed, and the case was remanded to the court below, with directions to take an account of the proceeds of all the personal property which the complainant claimed to be pledged. That account has been taken, and a decree has been rendered upon the accounting. Each of the parties to the suit has appealed from this decree.

T. J O'Donnell, for plaintiff.

Charles J. Hughes, Jr. (Barnwell S. Stuart, on the brief), for defendant.

Before SANBORN, THAYER, and HOOK, Circuit Judges.

SANBORN Circuit Judge (after stating the facts as above).

The first question which the record in this case presents is whether or not the assignments of error were filed in such time that the merits of the case may be reviewed in this court. On June 23, 1902, each of the parties to this suit prayed in open court for an appeal from the decree, and orders were made that the appeal of the defendant was allowed, 'but upon the condition, nevertheless, that the respondent give bond on such an appeal in the sum of fifty thousand dollars ($50,000), ' and that the appeal of the complainant was allowed, 'but upon condition, nevertheless, that he give bond on said appeal in the sum of five hundred dollars ($500). ' On August 15, 1902, the defendant filed an assignment of errors, an approved bond in the sum of fifty thousand dollars $50,000, and a citation dated on that day. On August 20, 1902, the complainant filed an assignment of errors, an approved bond for $500, and a citation dated on that day. The bonds were approved and the citations were signed by the judge who heard the case and made the conditional orders of allowance for the appeals. In this way the question is presented whether or not an assignment of errors is filed at or before the allowance of the appeal, within the meaning of rule 11 of this court (91 Fed.vi, 32 C.C.A. lxxxviii), when it is filed at the time when the judge signs the citation and approves the bond which he has made a condition of the allowance of the appeal.

The acts of Congress provide that 'there shall be annexed to, and returned with any writ of error for the removal of a cause at the day and place therein mentioned an authenticated transcript of the record, an assignment of errors and a prayer for reversal with a citation to the adverse party,' and that 'appeals * * * shall be subject to the same rules, regulations and restrictions as are or may be prescribed in law cases of writs of error. ' Rev.St. Secs. 997, 1012; 1 U.S. Comp.St. 1901, pp. 712, 716. Rule 11, so far as it is relevant to the question now under consideration, reads:

'The plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors which shall specify separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed.'

The acts of Congress did not require the filing of an assignment of errors before the allowance of a writ of error or of an appeal. This requirement rests upon rule 11 of this court, which is the same in terms and effect as rule 34 of the Supreme Court of the United States. There are two reasons for this rule: One is that the judge to whom the application for the allowance or issue of a writ of error is presented may be informed what the alleged errors are upon which the petitioner relies, so that he may intelligently decide the question whether or not the writ should be issued. The other is that opposing counsel and the appellate court may be informed by a statement which becomes a part of the record what questions of law are presented for their consideration and determination.

The first reason applies to the allowance of a writ of error only. It is inapplicable to the allowance of an appeal. The filing of the petition for a writ of error, with its accompanying assignment of errors, is the institution of a suit in the appellate court. The petition and the assignment set forth the grounds for the issue of the writ, and the duty of deciding whether or not these grounds are sufficient to warrant its issue, and of issuing or refusing to issue it in accordance with his decision of this question, is imposed upon the judge to whom they are presented.

It is not so in the case of an appeal. The right to appeal is an absolute right granted to the defeated party by the acts of Congress. No court or judge has any jurisdiction or power to condition the allowance of an appeal upon his consideration or determination of the question whether or not the applicant presents alleged errors which form reasonable grounds for the review of the decision below. That question is reserved for the consideration of the appellate court exclusively. The petitioner has the same right to the allowance of his appeal, in the absence of error or of the appearance of it, as when he presents the most conclusive reason for the belief that the decision against him was erroneous. The only question for the consideration of the court or of the judge to whom an application for an appeal is made is the sufficiency of the security offered for the costs and damages, or for the costs alone; and if the petitioner presents satisfactory security, and prays an appeal in accordance with the statute and the rules of the courts, the duty of the court or judge to whom he presents his application is imperative to allow it. Brown v. McConnell, 124 U.S. 489, 490, 8 Sup.Ct. 559, 31 L.Ed. 495; Pullman's Palace Car Co. v. Central Transp. Co. (C.C.) 71 F. 809. The result is that the assignment of errors is not required to be filed before an allowance of appeal for the benefit or information of the court to whom the application for its allowance is made. The only reason for its filing at that time is that the alleged errors upon which the petitioner relies may be made a part of the record for the information of opposing counsel and of the appellate court; and that object is as well attained by filing it at any time before the security is approved and accepted as by filing it before the order is made which allows the appeal only upon the giving of the security.

Again, no formal order of allowance of an appeal is requisite to its perfection. The acceptance of security in open court at the same time at which the decree challenged is rendered, or the acceptance of security and the issue of a citation by the proper court or judge at any proper time or place within the period limited for an appeal, in themselves constitute its allowance, without any other or further order regarding the matter. Sage v. Railroad Co., 96 U.S. 712, 715, 24 L.Ed. 641; Draper v. Davis, 102 U.S. 370, 371, 26 L.Ed. 121; Brandies v. Cochrane, 105 U.S. 262, 26 L.Ed. 989; National Bank v. Omaha, 96 U.S. 737, 24 L.Ed. 881.

What then, in the light of these principles and rules, was the legal effect of the orders of the court below, made on June 23, 1902, to the effect that...