Sprague v. Chicago, B. & QR Co.

• Decision Date: 31 January 1927
• Docket Number: No. 7288.,7288.
• Citation: 17 F.2d 768
• Parties: SPRAGUE v. CHICAGO, B. & Q. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

17 F.2d 768 (1927)

SPRAGUE v. CHICAGO, B. & Q. R. CO.

No. 7288.

Circuit Court of Appeals, Eighth Circuit.

January 31, 1927.

M. F. Harrington, of Omaha, Neb., for plaintiff in error.

Jesse L. Root, of Omaha, Neb. (Byron Clark and J. W. Weingarten, both of Omaha, Neb., and E. D. Crites, of Chadron, Neb., on the brief), for defendant in error.

Before KENYON and BOOTH, Circuit Judges, and KENNAMER, District Judge.

KENNAMER, District Judge.

This action was instituted for the recovery of damages for injuries received by plaintiff while a passenger on one of defendant's trains. Upon the conclusion of the trial of the case, the trial judge directed a verdict in favor of the plaintiff for nominal damages. Plaintiff was granted 42 days in which to prepare and file a motion for a new trial, but the record does not contain any such motion, and fails to disclose that any such motion was filed or passed upon by the trial court. It should be observed that the case was tried on the 9th day of September, 1924, that the bill of exceptions was settled and allowed on the 1st day of October, 1925, and that the order allowing the writ of error was signed on the 26th day of October, 1925, more than one year subsequent to the rendering of the verdict and the entry of the judgment in the cause. An order was entered by the trial court extending the time in which to prepare and file a bill of exceptions in the case, to October 1, 1925, and the time in which to file the record in the United States Circuit Court of Appeals was by the trial court extended to November 1, 1925.

Defendant has interposed a motion to dismiss the writ of error, and we are of the opinion that the motion should be sustained. United States Comp. Stats., 1916, § 1647, provides: "No appeal or writ of error by which any order, judgment, or decree may be reviewed in the Circuit Court of Appeals under the provisions of this act, shall be taken or sued out except within six months after the entry of decree sought to be reviewed."

As the writ of error in the instant case was not sued out within six months after the entry of the judgment in the case, it is obvious from the provisions of the above statute that this court is without jurisdiction to review the judgment of the trial court. Congress has expressly limited the time in which a writ of error on appeal may be sued out, and it is well settled that the time provided by statute in which an appeal may be taken or a writ of error sued out, after the entry...