United States v. Konstovich
| Decision Date | 11 January 1927 |
| Docket Number | No. 2535.,2535. |
| Citation | 17 F.2d 84 |
| Parties | UNITED STATES v. KONSTOVICH. |
| Court | U.S. Court of Appeals — Fourth Circuit |
L. S. Parsons, Sp. Asst. U. S. Atty., of Norfolk, Va. (Paul W. Kear, U. S. Atty., of Norfolk, Va., on the brief), for the United States.
James G. Martin, of Norfolk, Va. (Ernest S. Merrill, of Norfolk, Va., on the brief), for defendant in error.
Before ROSE and PARKER, Circuit Judges, and WATKINS, District Judge.
The defendant in error was plaintiff below. She sued the United States to recover unpaid installments of war risk insurance on the life of her deceased husband. During the November term, 1925, a jury trial resulted in a verdict for her upon which on the 9th of March 1926, judgment was entered that she recover $3,277.50, the amount of the installments unpaid up to the time of the trial, that the insurance be reinstated, that her counsel be allowed an attorney's fee of 5 per cent. on such $3,277.50, to be paid out of the money the plaintiff should receive under the judgment, and 5 per cent. on each installment she should thereafter collect. It was further provided that the defendant should be allowed 60 days in which to file its bill of exceptions; that is, it was given until the 8th of May, a day which fell within the succeeding or May term of the court. In point of fact no draft of the bill of exceptions was presented to the judge until June 9th. It was then allowed and signed by him nunc pro tunc. The plaintiff objects that it was not signed in time, and we may not therefore consider it.
The term at which the trial had taken place expired on the first Monday of May and the time given by the order of March 9th, a few days later. Under these circumstances, the court had no power to approve the bill. Exporters of Manufacturers' Products, Inc., v. Butterworth-Judson Co., 258 U. S. 365, 42 S. Ct. 331, 66 L. Ed. 663, and our own decision in Goetzinger and Stave & Timber Corp. v. Woodley, 17 F.(2d) 83, handed down simultaneously herewith. That the order of approval recited that it was made nunc pro tunc was immaterial. In Twohy Bros. v. Kennedy, 295 F. 462, the Circuit Court of Appeals for the Ninth Circuit expressly based its decision upon the ground that it did not appear that the trial term had expired at the time the nunc pro tunc order was actually signed. Apparently it had not. Act of Oct. 3, 1913, c. 17, §§ 1, 2, 38 Stat. 203 (Comp. St. §§ 1054, 1055). In the instant case it had. In the absence of a rule to the contrary, a bill of exceptions may be allowed at any time within the term at which the trial was had, or during any time to which by general or special rule or order the term or the time for signing the bill of exceptions has...
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