Struett v. Hill

• Decision Date: 11 October 1920
• Docket Number: 3539.
• Citation: 269 F. 247
• Parties: STRUETT v. HILL.
• Court: U.S. Court of Appeals — Ninth Circuit

269 F. 247

STRUETT v. HILL.

No. 3539.

United States Court of Appeals, Ninth Circuit.

October 11, 1920

The complainant moves the Circuit Court of Appeals for an order directed to the United States District Judge at Tacoma Wash., requiring him to show cause why he should not approve the record of the evidence and proceedings in the above-entitled cause as tried before him in equity, and, if the evidence and record lodged with the clerk by appellant be not complete for the purpose of the appeal, that the same shall be so made under the direction of the District Judge. The motion is based upon these facts:

The case was tried in the District Court on October 29, 1919, and on November 20, 1919, decree was entered against complainant. Thereafter, on May 18, 1920, the District Judge allowed an appeal to the Circuit Court of Appeals upon the filing of a petition for appeal, bond, assignment of errors, and citation. At the time of perfecting the appeal, as above set forth, complainant had not filed with the clerk of the District Court any statement of the evidence as contemplated by rule 75 of the Equity Rules of October, 1912 (198 F. xl 115 C.C.A. xl). Thereafter, on June 10, 1920, appellant filed with the clerk of the District Court a motion praying for settlement of the record in the cause and for relief from any default for failure to lodge the record with the clerk before the allowance of the appeal. This motion was served upon counsel for appellee, and after hearing the judge denied the motion and refused to approve the record, because the same had not been filed within 10 days after the entry of the decree in said cause, or within any extension of time allowed by the court. The solicitor for appellant includes in his motion the statement that prior to the argument of the motion complainant tendered appellee in open court a full and true transcript of the testimony certified by the court reporter.

Appellee objects upon the ground of lack of jurisdiction in this court, and sets forth that no effort was made to present for settlement a statement or bill of exceptions until more than 6 months after the entry of the final decree, and that no extension of time was granted within which to settle the bill of exceptions. Lack of diligence is also urged.

Wm. P. Lord, of Portland, Or., for appellant.

Roberts & Skeel and L. B. Schwellenbach, all of Seattle, Wash., for appellee.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

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

Rule 75 of the Equity Rules makes it the duty of the appellant to file with the clerk of the court in which the appeal is prosecuted a praecipe for the portions of the record to be incorporated in the transcript on appeal, and requires the appellee, if he shall desire an additional portion of the record incorporated, to file with the clerk a praecipe within 10 days unless the time shall be enlarged by the court or judge. The rule also prescribes how the evidence shall be included and puts the duty of condensing and stating the evidence primarily upon the appellant, 'who shall prepare his statement thereof and lodge the same in the clerk's office for the examination of the other parties at or before the time of filing his praecipe under paragraph 'a' of the rule.'

Appellant is required to notify the other parties of such lodgment, and of a time and place when he will ask the court or judge to approve the statement, the time so made to be at least 10 days after such notice. At the expiration of the time named or such further time as the court or judge may allow, 'the statement, together with any objections made or amendments proposed by any party, shall be presented to the court or judge, and if the statement be true, complete, and...