70 F. 801 | 3rd Cir. | 1895
We have very carefully considered the motion of the plaintiff in error for the dismissal of his writ of error in this case upon the ground that there was and is no final judgment in the court below. We, however, think it is not desirable that we should, upon the present motion, decide whether, when the writ of error issued, there was or was not such a judgment. We remit that question to the circuit court. Whether the entry of November 24, 1894, should be taken as a valid and conclusive entry of judgment in the cause is one which, in our judgment, should, under the peculiar circumstances of this case, be brought before the court whose judgment is in question, and be by that court considered, before calling upon us to pass upon it. That the entry referred to was made irregularly and prematurely, if the general practice with which we are familiar should be applied to it, we have no doubt; and it may well be that, upon examination and full consideration of the subject, the circuit court, which as yet has not had occasion to consider it, will be able to correct its record, by striking off the entry of November 24, 1894, as having been improvidently made, and so relieve the plaintiff in error from the situation, in which he apparently stands, of having sued out his writ of error after the period allowed by the statute had expired. It is accordingly ordered that the writ of error in this case be, and is hereby, dismissed without prejudice, and that the record be remitted to the circuit court for the district of Delaware, with leave to the plaintiff in error to proceed in that court as he may be advised.
