Sutherland v. Pearce

• Decision Date: 10 April 1911
• Docket Number: 1,932.
• Parties: SUTHERLAND et al. v. PEARCE.
• Court: U.S. Court of Appeals — Ninth Circuit

186 F. 783

SUTHERLAND et al. v. PEARCE.

No. 1,932.

United States Court of Appeals, Ninth Circuit.

April 10, 1911

W. C Sharpstein, for appellants.

G. C Israel, J. A. Hellenthal, and Grant H. Smith, for appellee.

Before MORROW, Circuit Judge, and VAN FLEET and DIETRICH, District judges.

MORROW Circuit Judge.

This cause was docketed in this court on January 3, 1911, by counsel for appellee under rule 16 (150 F. xxix, 79 C.C.A. xxix) of this court, and dismissed upon the production of a certificate from the clerk of the District Court for the District of Alaska, Division No. 1, dated December 17, 1910 reciting the entry of a decree in favor of the appellee on June 1, 1910; the allowance of an appeal on June 18, 1910 the issuance of a citation on June 20, 1910, returnable July 20, 1910; the entry of an order extending the time for the return of the citation to September 20, 1910; the entry of an order on September 8, 1910, extending the time within which to prepare and present a bill of exceptions to November 20, 1910. The certificate further set forth that no further order or orders enlarging or extending the time within which to transmit the record in the case to this court, or within which to docket the case in this court, or extending the time within which to return the citation, or the transmission of the record and the docketing of the case in this court, had been filed or entered in the office of the clerk of the District Court for the District of Alaska, Division No. 1. The inference to be drawn from the facts recited in this certificate was that the appeal was not being prosecuted in good faith, but for delay, and that it had been abandoned by the appellants, and upon this showing the appeal was ordered dismissed by this court.

Rule 16 is as follows:

'1. It shall be the duty of the plaintiff in error or appellant to file the record thereof and docket the case with the clerk of this court at San Francisco, California, by or before the return day, whether in vacation or in term time. But for good cause shown, the justice or judge who signed the citation, or any judge of this court, may enlarge the time by or before its expiration, the order of enlargement to be filed with the clerk of this court. If the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee may have the cause docketed and dismissed, upon producing a certificate, whether in term time or vacation, from the clerk of the court wherein the judgment or decree was rendered, stating the case and certifying that such writ of error or appeal has been duly sued out or allowed. And in no case shall the plaintiff in error or appellant be entitled to file the record and docket the case after the same shall have been docketed and dismissed under this rule, unless by order of the court.'

The purpose of this rule is to enable the appellee or defendant in error to secure the dismissal of an appeal or writ of error where it becomes apparent by a proper showing that the appellant or plaintiff in error is not prosecuting his appeal or writ of error diligently under the rules of the court, or that the appeal or writ of error has not been taken or sued out in good faith, but only for the purpose of delay.

In the present case the certificate of the clerk omitted certain important proceedings which were had in the court below prior to December 17, 1910, the date of the certificate. These proceedings appear in the record now on file and by affidavits on the present motion. The certificate omitted to recite that the appellants on June 6, 1910, had given a supersedeas bond in the court below in the sum of $30,000 conditioned that they would prosecute the appeal to effect and answer all damages that might be awarded against them. It omitted to recite that an order was entered on September 26, 1910, 'that defendants have forty days additional time from October the 1st, 1910, in which to perfect their appeal. ' It omitted to recite that a bill of exceptions in the case was signed on September 15, 1910, and that this bill of exceptions was filed with the clerk of the court on October 17, 1910. The certificate further omitted to recite that the appellants on October 26, 1910, filed a praecipe with the clerk of the court directing him to prepare and forward a transcript of the record to this court, and that the praecipe enumerated the documents of which this transcript was to consist. Had these recitals appeared in the clerk's certificate, this court would have been informed that appellants were prosecuting their appeal, and that seven weeks prior to the date of the clerk's certificate he had been directed by the appellant's praecipe to prepare a transcript of the record for this court. It appears, further, that the appellants undertook to assist the clerk in the preparation of this transcript by supplying him with office copies of such papers as they had copies of, and, by reason of delay in preparing the transcript, the appellants...