295 F. 856 | 6th Cir. | 1924
This was a proceeding brought under the Pure Food and Drugs Law (Comp. St. §§ 8717-8728), commenced by filing a libel in the District Court against the property sought to be condemned. There was a trial by jury, and a judgment of condemnation.
From this judgment the claimants appealed, petitioning for an appeal, procuring an allowance, and filing assignments of error — all as in an equity case. After the expiration of the trial term, and without any order made during that term extending time, the District Court approved the paper which is printed in the record under the caption “Bill of Exceptions,” but which was filed in connection with an order extending time “to perfect the reducing of the testimony in the above-entitled cause to narrative form.” In the stipulation of counsel as to what papers should make up the record, this document was called “statement of evidence.” In connection with its signature and approval by the District Judge, it was nameless.
It is apparent that, under the rule stated in Four Hundred and Forty-Three Cans, etc., v. United States, 226 U. S. 172, 179, 184, 33 Sup. Ct. 50, 57 L. Ed. 174, these review proceedings were confused and mistaken. Review should have been by writ of error, and this would necessitate dismissing the appeal, save for the effect of section 4 of the Act of September 6, 1916 (39 Stat. p. 727 [Comp. St. § 1649]), which directs that such a mistake shall be disregarded and the appellate court shall “take the action which would be appropriate if the proper appellate procedure had been followed.”
In compliance with this statute it is clear that the appeal should be treated as a writ of error; that, so far as the record may justify, further proceedings in this court should be as upon a writ of error; and that the reviewing jurisdiction and powers of this court will be in all respects the same as upon a review at law. Proper disposition of the so-called bill of exceptions is not so plain. If the review proceedings had from the beginning been at law, it would be necessary to strike out the bill of exceptions, because not settled within the trial term, or within any extension made during that term (Exporters, etc., v. Butterworth Co., 258 U. S. 365, 368, 42 Sup. Ct. 331, 66 L. Ed. 663); but it would be of small avail for the appellate court to transfer a case from the equity to the law side, and at the same time leave
The case will therefore proceed to hearing upon these principles. All the motions of the respective parties, except as herein granted, are denied.