Stickel v. United States

• Court: U.S. Court of Appeals — Eighth Circuit
• Citation: Stickel v. United States, 294 F. 808 (8th Cir. 1923)
• Decision Date: 10 December 1923
• Parties: STICKEL v. UNITED STATES.

294 F. 808

STICKEL v. UNITED STATES.

United States Court of Appeals, Eighth Circuit.

December 10, 1923

David A. Fitch, of Omaha, Neb. (A. W. Jefferies and Norris Brown both of Omaha, Neb.), for plaintiff in error.

James C. Kinsler, U.S. Atty., of Omaha, Neb.

Before SANBORN and KENYON, Circuit Judges, and MUNGER, District Judge.

SANBORN Circuit Judge.

This application rests upon these facts: The trial below commenced on March 20, 1923, and occupied all the court days until May 16, 1923. A great number of witnesses testified and the documentary evidence was very voluminous. The plaintiff in error, defendant below, made a motion for a new trial, which was denied on June 8, 1923. On that day he ordered the court reporter to prepare as soon as possible a transcript of the testimony offered and received at the trial, and the reporter has been diligently engaged in fulfilling this order, but he has not yet finished the transcript, and cannot do so on or before January 2, 1924, when the time will expire for the making and filing of the bill of exceptions under the order of the District Court as it now stands.

On June 8, 1923, the plaintiff in error sued out his writ of error and on that day citation was issued and served. On September 20, 1923, during the term of court at which the verdict was found, the judgment rendered, and the writ of error issued the plaintiff in error had discovered that the court reporter would fail to complete the transcript of the evidence at that term of the court, and he applied to the trial court and it made an order that the time for the preparation, service, and settlement of the bill of exceptions be extended to January 2, 1924, and that the time to file the record in this court be enlarged to February 15, 1924. The plaintiff in error has presented a reasonable excuse for his failure to obtain a settlement of the bill of exceptions and to file the record in this court, and appears to be acting in good faith. A fair opportunity to settle and file the bill of exceptions and to file the record in this court ought to be given to him, if either this court or the trial court has jurisdiction so to do.

Counsel for the United States earnestly contends that this court has no jurisdiction to make an order extending the time for the service and settlement of the bill of exceptions in this case. He cites in support of his contention Exporters v. Butterworth-Judson Co., 258 U.S. 365, 368, 42 Sup.Ct. 331, 66 L.Ed. 663, O'Connell v. United States, 253 U.S. 142, 40 Sup.Ct. 444, 64 L.Ed. 827, Michigan Insurance Bank v. Eldred, 143 U.S. 298, 12 Sup.Ct. 450, 36 L.Ed. 162, and Wick v. United States (C.C.A.) 290 F. 191.

In Exporters v. Butterworth-Judson Co., 258 U.S. 365, 368, 42 Sup.Ct. 331, 66 L.Ed. 663, the stated terms of court prescribed by act of Congress began on the first Tuesday of each month, but a general rule of court extended the time for taking any action that must be taken within the term of court 90 days from the date of the entry of the judgement. These 90 days expired February 24, 1920. On March 1, 1920, the parties to the suit stipulated that the term of court be extended to April 6, 1920, for the purpose of settling and filing the bill of exceptions. The trial court settled the bill of exceptions after the expiration of the 90 days under this stipulation, and the Supreme Court held that the trial court's jurisdiction over the bill of exceptions was lost at the end of the 90 days, and that it could not be restored to the court by any stipulation of the parties made after that expiration.

In O'Connell v. United States, 253 U.S. 142, 145 146, 147, 40 Sup.Ct. 444, 64 L.Ed. 827, the trial was at the July term of the court, which expired November 15, 1917. But for the purpose of settling and filing the bill of exceptions general rule 9 of the District Court extended the term three calendar months beginning on the first Tuesday of the month in which the verdict was rendered or judgment entered, and those three months expired on December 4, 1917. Rule 61 of that court provided that, when an act to be done in any pending suit related to the preparation of bills of exceptions or amendments, 'the time allowed by these rules may, unless otherwise specially provided, be extended by the court or judge by order made before the expiration of such time, but no such extension or extensions shall exceed 30 days in all without the consent of the adverse party. ' The time allowed by these rules expired on December 4, 1917. Within that time the trial court made an order on September 29, 1917, granting 30 days for the preparation and presentation of the bill of exceptions, an order on October 22 extending the time to November 15, an order on November 12 specifying November 27, and an order on November 26 which specified December 15, 1917. This order of November 26 was the last order made by the court before the expiration, on December 4, 1917, of the extended time fixed by the rules of the court, and counsel for the defendant in error objected in open court to each of the orders that was made after the expiration of that time (253 U.S. 145, 146, 40 Sup.Ct. 444, 64 L.Ed. 827), to wit: An order on December 14 undertaking to extend the time for preparation and presentation of the bill of exceptions to...