Western Dredging & Improvement Co. v. Heldmaier

• Decision Date: 06 May 1902
• Docket Number: 808.
• Citation: 116 F. 179
• Parties: WESTERN DREDGING & IMPROVEMENT CO. v. HELDMAIER.
• Court: U.S. Court of Appeals — Seventh Circuit

116 F. 179

WESTERN DREDGING & IMPROVEMENT CO. v. HELDMAIER.

No. 808.

United States Court of Appeals, Seventh Circuit.

May 6, 1902

Ira C Wood, for the motion.

John M Duffy, opposed.

This cause was tried February 8, 1901, before the district judge of the United States for the Eastern district of Wisconsin presiding by assignment in the in the circuit court of the United States for the Northern district of Illinois, and to a jury, resulting in a verdict for the defendant by direction of the court. On the same day, a motion for a new trial being overruled, judgment was entered in favor of the defendant and the plaintiff was allowed sixty days to prepare and present his bill of exceptions. The time for that purpose was extended by stipulation of the parties from time to time until June 17, 1901, when a further stipulation was made granting a further extension of ten days from that date, and an order on that stipulation entered accordingly. On June 27, 1901, the plaintiff filed in court its bill of exceptions, which was marked 'O.K.' by counsel for both parties. The district judge of the United States for the Northern district of Illinois then presiding in the circuit attached to the bill of exceptions and signed this certificate: 'And forasmuch as the matter above set forth do not fully appear of record, the plaintiff tenders this his abstract of record and bill of exceptions, and prays that the same may be signed and sealed by the judge of this court pursuant to the rules thereof, which certificate is (in the absence of the trial judge, Hon. William H. Seaman, from the circuit) accordingly made and herewith attached this 27th day of June, A.D. 1901. ' The record, including such bill of exceptions, was remitted to this court in the return to the writ of error, and at the last session of this court, upon the motion of the defendant in error, the document purporting to be a bill of exceptions was, on October 15, 1901, suppressed; this court holding that absence from the circuit was not a disability under section 953, Rev. St., as amended by the act of June 5, 1900 (31 Stat. 270), which authorized the allowance and the signing of the bill of exceptions by other than the trial judge. Improvement Co. v. Heldmaier, 49 C.C.A. 264, 111 F. 123. Subsequently, on December 4, 1901, the bill of exceptions was presented to the Honorable William H. Seaman, district judge of the United States for the Eastern district of Wisconsin, then again holding by assignment the term of the circuit court of the United States for the Northern district of Illinois, and he and the Honorable C. C. Kohlsaat, district judge of the United States for the Northern district of Illinois, then also sitting in the circuit court of the United States for the Northern district of Illinois, signed and attached to such bill of exceptions their several certificates, as follows:

'And forasmuch as the matters above set forth do not fully appear of record, the plaintiff herein tenders this its abstract of record and bill of exceptions, and prays that the same may be signed and sealed by the judge who presided at the trial, Hon. William H. Seaman, which certificate is accordingly made and herewith ordered filed and attached to the said abstract of record and bill of exceptions this 4th day of December, A.D. 1901, nunc pro tunc as of the 27th day of June, A.D. 1901. This certificate is made and given and ordered filed under the following conditions: On said 27th day of June, A.D. 1901, the plaintiff herein did tender this its said abstract of record and bill of exceptions to this court (the same having been examined and approved in writing by counsel for both parties hereto, as appears from the original of said abstract or record and bill of exceptions), at which time, it being the last day of the attaching of the certificate of the judge to said abstract of record and bill of exceptions, and the said Hon. William H. Seaman, the judge who presided at said trial, being absent from the district on said date (he having come especially into the district from the Eastern district of Wisconsin to preside at the trial of this and other causes then pending on the trial calendar of this district), and the plaintiff being then unable to secure the signature of the said Hon. William H. Seaman as trial judge to said original certificate, and not knowing the whereabouts at that time of the said Hon. William H. Seaman, and upon due inquiry of the clerk and other officials of said court being unable to obtain such information, and having tendered this its said abstract of record and bill of exceptions into the hands of the clerk of said court on said 27th day of June, A.D. 1901 (the said abstract of record and bill of exceptions then approved by counsel for both parties hereto having been up to the date of presentation to the court in the hands of counsel for the defendant herein for their examination and approval), upon said tender on said date, June 27, A.D. 1901, the Hon. C. C. Kohlsaat, the presiding judge of said court, in the absence of the judge who presided at said trial, Hon. William H. Seaman, duly placed his signature to the original certificate attached to said abstract of record and bill of exceptions, and directed the clerk of said court to file the said abstract of record and bill of exceptions so certified. It now appearing to the undersigned, the Hon. William H. Seaman, that no injury will result from the making, filing, and attaching to said original abstract of record and bill of exceptions of this certificate on this 4th day of December, A.D. 1901, nunc pro tunc as of the 27th day of June, A.D. 1901, but that the doing thereof will be in apt time and only in furtherance of justice between all parties concerned, it is therefore accordingly done, and the clerk of said court is directed to file and attach this certificate in said cause to the original abstract of record and bill of exceptions filed therein on the 27th day of June, A.D. 1901, and to file and so attach the same on this 4th day of December, A.D. 1901, nunc pro tunc as of the 27th day of June, A.D. 1901.

'(Signed)

William H. Seaman, 'Trial Judge of the Circuit Court of the United States of America, Northern District of Illinois, Northern Division.

'I have read the above and foregoing certificate of the Hon. William H. Seaman to the abstract of record and bill of exceptions in said cause, and I hereby certify that it sets up the facts in relation to the original tender and signing of the original certificate attached to the original abstract or record and bill of exceptions, and the circumstances under which the same was given, and said abstract of record and bill of exceptions filed by my direction in said cause in this court on the 27th day of June, A.D. 1901.

'(Signed)

C. C. Kohlsaat, 'Judge Circuit Court of the United States of America, Northern District of Illinois, Northern Division.

'November, A.D. 1901.'

-- And the document was thereupon filed in open court December 4, 1901, nunc pro tunc as of June 27th, 1901.

The plaintiff in error now moves this court that he be allowed to file such bill of exceptions, with the certificates thereto attached, nunc pro tunc as of the 18th day of July, 1901, being the date when the return to the writ of error was filed in this court, and that so much of the abstract of record, including the bill of exceptions, as was heretofore filed and stricken out by the court, be ordered refiled, and be considered as refiled, and be printed with the original certificates as part of the transcript of the record, and considered by the court upon the hearing of the writ of error.

There are two statutory terms of court in each year in the Northern district of Illinois, at Chicago, one commencing on the first Monday in July, and the other on the third Monday in December.

Before JENKINS, GROSSCUP, and BAKER, Circuit Judges.

JENKINS Circuit Judge, after stating the facts, .

The common-law rule that after the term at which a judgment is rendered the court is without authority to do any act which would impair the conclusiveness, affect the finality, or impeach the validity of the judgment probably had its origin in the fact that in England the judge was commissioned by the crown to hold a particular term of court, and with the adjournment of the term the commission expired, and the judge was without further authority to act lith respect to matters occurring at that term. If that were the only reason for the rule, it could have no standing in this country, where the judicial power is lodged by the constitution and is a continuing power. The rule, however, obtains here notwithstanding the reason for its adoption in England is here unavailing, and for a better reason, namely, that there must be a time when a litigant shall be discharged out of court, and all control over the rights adjudged him shall be at an end; and for that purpose we recognize the common-law rule that the end of the term shall in general be the end of authority with respect to rights adjudged at the term. The rule, the reason of it and its limitations have been declared by the supreme court. Muller v. Ehlers, 91 U.S. 250, 23 L.Ed. 319; Bank v. Eldred, 143 U.S. 293, 298, 12 Sup.Ct. 450, 452, 36 L.Ed. 162. In the latter case it is said by Mr. Justice Gray, speaking for the court:

'By the uniform course of decision, no exceptions to rulings at a trial can be considered by this court unless they were taken at the trial, and were also embodied in a formal bill of exceptions presented to the judge at the same term, or within a futher time allowed by order entered at that term, or by standing rule of court, or by consent of parties; and, save under very extraordinary circumstances, they must be

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