Southern Pac. Co. v. Sartoris

• Decision Date: 06 August 1928
• Docket Number: No. 5453-5455.,5453-5455.
• Citation: 27 F.2d 852
• Parties: SOUTHERN PAC. CO. v. SARTORIS et al.
• Court: U.S. Court of Appeals — Ninth Circuit

27 F.2d 852 (1928)

SOUTHERN PAC. CO. v. SARTORIS et al.^*

Nos. 5453-5455.

Circuit Court of Appeals, Ninth Circuit.

August 6, 1928.

Ford, Johnson & Bourquin, of San Francisco, Cal. (Frank C. Cleary, of San Francisco, Cal., and A. E. Stewart, of San Francisco, Cal., of counsel), for appellant.

Horace M. Street, of San Francisco, Cal., for appellee Sartoris.

Before RUDKIN, DIETRICH, and HUNT, Circuit Judges.

DIETRICH, Circuit Judge.

The controversy underlying these appeals was decided by us in Sartoris v. Utah Construction Co. et al. (No. 5064) 21 F.(2d) 1. As will be noted, the original judgment of dismissal was there reversed, "with instructions to enter a judgment upon the record as it stands, in favor of plaintiff Sartoris and against the railroad company appellant here, for the reasonable cost of the extra work called for by the new plans, exclusive of the concrete, which has already been paid for, the cost to include a reasonable compensation for plaintiff's superintendence, and dismissing the plaintiff's complaint against the construction company, with appropriate disposition of the construction company's counterclaim against plaintiff." The mandate was filed in the court below on October 17, 1927, and on the same day, without notice to the railroad company, that court, upon motion of counsel for Sartoris, entered a judgment in his ravor and against the railroad company for $72,591.57, and against Sartoris in favor of the construction company, upon its counterclaim, for $66,591.57. On the following day written notice of the entry of the judgment was served upon the railroad company.

Thereafter, on November 22, 1927, the railroad company noticed a motion to vacate the judgment, upon the ground (1) that the court was wanting in authority to enter any judgment without notice and an opportunity to the railroad company to be heard; and (2) that the judgment entered was excessive and not supported by the record. Sartoris having on November 30, 1927, interposed objections to this motion, the railroad company on December 15, 1927, asked leave to amend. To this request objections were made, but without ruling thereon the court, on February 11, 1928, denied the motion to vacate the judgment; whereupon the railroad company filed exceptions both to the judgment and the order denying the motion. It is, perhaps, of no importance, but it seems that subsequently, in the latter part of March, an order was made granting the railroad company's request to amend its motion, and pursuant to stipulation and with the approval of the court the amended motion was deemed to have been filed and denied as of February 11th. Of date February 21, 1928, the railroad company took three separate appeals, the first a joint appeal from both the judgment and the order denying its motion to vacate, and the other two separate appeals from the judgment and order.

Sartoris moves to dismiss the appeal from the judgment upon the ground that it was not taken within the three months allowed by law, and the appeal from the order upon the ground that such an order is not appealable. Admittedly the appeal from the judgment was seasonably filed, if the pendency of the motion to vacate operated to suspend the running of the statutory limitation, and that such was its effect we think is well settled. Morse v. U. S., 270 U. S. 151, 46 S. Ct. 241, 70 L. Ed. 518; Brockett v. Brockett, 2 How. (43 U. S.) 238, 11 L. Ed. 251; Railroad Co. v. Bradleys, 7 Wall. (74 U. S.) 575, 19 L. Ed. 274; Memphis v. Brown, 94 U. S. 715, 24 L. Ed. 244; Kingman v. Western City Mfg. Co., 170 U. S. 675, 18 S. Ct. 786, 42 L. Ed. 1192; U. S. v. Board, 16 F.(2d) 337. The suggestion is made that a distinction may be found in the fact that here the judgment was entered pursuant to a mandate. Of course, if the judgment was such as...