Threadgill v. Platt

• Decision Date: 26 December 1895
• Citation: 71 F. 1
• Parties: THREADGILL v. PLATT et al.
• Court: U.S. Court of Appeals — Fourth Circuit

71 F. 1

THREADGILL v. PLATT et al.

United States Circuit Court, W.D. Virginia.

December 26, 1895

Kirkpatrick & Blackford, for plaintiff.

Tracy Boardman & Platt, Jas. Bumgardner, Jr., and Bev. T. Crump for defendants.

SIMONTON Circuit Judge.

The defendants in this case seek to perfect their appeal from the judgment of this court to the circuit court of appeals. This was an action at law, tried before a judge with a jury. The jury found a verdict for the plaintiff on 27th April, 1895. The trial had consumed several days, nearly a week. The testimony, taken by a stenographer, was voluminous. Many witnesses were examined. Very many exceptions were taken and noted during the progress of the cause. The defendants, among other things, had requested the court, at the close of the plaintiff's case, to instruct the jury to find a verdict in their favor. A similar motion was made when all the testimony was in. These motions were severally refused, and exceptions were taken and noted. It became clear, therefore that, if the defendants desired a review of the case in the appellate court, much time was needed for formulating the exceptions taken at the trial, and for the preparation of the assignments of error; all of which, under the practice, must be prepared anterior to, and must be presented with, the petition for the writ of error and citation. The counsel for the defendants expressed in open court their desire to carry the case up. For these reasons, the court stayed execution upon the judgment for 60 days, the period limited for allowing a supersedeas, and gave the defendants 30 days within which to formulate the exceptions taken during the progress of the case; and as the juries were about to be discharged, and the action business of the court to cease, as a further precaution the trial judge did not adjourn sine die, but kept the court open to the end of the term (September 9th); so that, in any event, the exceptions could be formulated before final adjournment. ^[1] No order was made delaying the entry of judgment. This plaintiff did on 27th day of April, 1895. No formulated exceptions were presented to the trial judge until 26th day of September, 1895, when they were at once signed and sent to the clerk to be filed. They were filed on 28th day of September, 1895. No petition for a writ of error and no assignments of error were presented. No bond of any kind, either for costs or for supersedeas, has been tendered. No citation has been issued. During the session of the circuit court of appeals at Richmond, in November last, counsel for both parties appeared before the trial judge at chambers, on 13th November, 1895; and some discussion was had as to the proper time within which the writ of error should have been applied for in this cause. This discussion was continued, and counsel were allowed until 15th December, 1895, to submit briefs on the whole question. The briefs have been submitted

This is a case at law. It cannot be reviewed in the appellate court but on writ of error. Without a writ of error the appellate court cannot take jurisdiction of the cause. Mussina v. Cavazos, 6 Wall. 358; Chase v. U.S., 155 U.S. 489, 15 Sup.Ct. 174; Stevens v. Clark, 10 C.C.A. 379, 62 F. 321. A party seeking a writ of error must first enter into bond with surety to prosecute his writ or appeal to effect. Rev. St. U.S. Sec. 1000. The practice prescribed by the circuit court of appeals of the Fourth circuit requires the party who seeks a writ of error to do so by petition, accompanied by an assignment of errors. Insurance Co. v. Conoley, 11 C.C.A. 116, 63 F. 180. No citation can issue until the writ is allowed; so this is a condition precedent to the issue of the citation. Section 1000. Now, 'no appeal or writ of error by which any order, judgment or decree may be reviewed in the circuit court of appeals shall be taken or sued out except within six months after the entry of the order, judgment or decree sought to be reviewed.' 26 Stat. 829, Sec. 11. The cases speak with no uncertain voice as to the practice in these cases. 'The United States circuit court of appeals has no jurisdiction in a case where more than six months intervene between the entry of judgment and the day on which the writ of error is sued out. ' U.S. v. Baxter, 2 C.C.A. 410, 51 F. 624, 10 U.S.App. 241; Union Pac. Ry. Co. v. Colorado, etc., Ry. Co., 4 C.C.A. 161, 54 F. 22; Stevens v. Clark, 10 C.C.A. 379, 62 F. 321, Coullette v. Thomason, 1 C.C.A. 675, 50 F. 787. When a writ of error from the circuit court of appeals is allowed within the six months, but is not actually issued by the clerk until after the expiration thereof, it will be dismissed, for, in a legal sense, the writ of error is not brought until it is filed in the court below. U.S. v. Baxter, supra; Scarborough v. Pargoud, 108 U.S. 567, 2 Sup.Ct. 877. To give the appellate court jurisdiction of a writ of error, the writ must be sued and filed in the court below within the time prescribed by law, and this requirement cannot be waived by the parties. Stevens v. Clark, 10 C.C.A. 379, 62 F. 321.

In this case but one step has been taken towards perfecting the appeal. There is no petition, nor bond, nor assignment of errors. Each of these is indispensable. More than six months has elapsed since the entry of judgment. Counsel for defendants say that the six months do not begin to run until the rising of the court. But the act says that the time is computed from the entry of the judgment. The order suspending the execution, and allowing time for formulating exceptions, clearly contemplated entry of judgment forthwith, for the execution could not be issued, and therefore could not be suspended, until judgment entered, nor could a writ of error lie except from final judgment.

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