56 F. 956 | 8th Cir. | 1893
after stating the case as above, delivered the opinion of the court.
The controversy before us turns on the construction of the above-quoted section of the Colorado Code of Procedure, and the question to be determined is this: When, within the meaning of the statute, is a judgment rendered, so that the time limited for the payment of costs, in order to secure a new trial, begins to run? It is not questioned that the provision requiring the payment of costs prior to the first day of the next succeeding term after The judgment is rendered is a condition precedent to the right to have the judgment vacated. On the one hand, however, it is contended That on the facts disclosed by the present record the judgment was not rendered until it was affirmed by the supreme court on February 29, 1892, and that the costs were paid in time if paid prior to the next succeeding term of the United States circuit court for the district of Colorado; on the other hand, the contention is that the time limited to pay the costs began to run from November 21, 1885, when the judgment was first entered in ihe circuit court.
The courts of Colorado do not, appear to have construed the statute to which the discussion relates, but it was stated in argument (and the statement is not. denied) that the universal practice in that, state has hitherto been to treat the judgment as rendered on the day it was entered in the trial court, for the purpose of computing the time wiien costs must be paid to entitle the losing party to a new trial. Indeed, it was broadly stated in argument That this is the first time that an attempt has been made in that state, to obtain a ruling’, that', where a judgment has been rendered ah nisi prius, and a writ of error has been sued out, and the judgment; affirmed, the time limited for the payment of the costs only begins to run when the judgment of affirmance is entered.
In passing, we may remark that the i>ractical construction of a statute such as this, in the state when it was enacted, — that is to say, the interpretation That lias been generally placed upon it by the members of the bar in the trial of litigated cases, — is certainly entitled to great weight.
The adjudged cases that have an immediate bearing upon the point, that we have to decide are the following: Bank v. White, 23 N. Y. 347; Railway Co. v. McBroom, 103 Ind. 310, 2 N. E. Rep. 760; Boyce v. Circuit Judge, 79 Mich. 154, 44 N. W. Rep. 343; Clark v. Green, 62 Mich. 355, 28 N. W. Rep. 894; and Smale v. Mitchell, 143 U. S. 99, 12 Sup. Ct. Rep. 353. The first of these cases is a direct, adjudication, under 'a New York statute in all respects similar to the Colorado statute, that when a judgment
In this condition of the authorities we are left at liberty to determine which is the 'better construction of the statute in question, and, in our judgment, the weight of reason is in favor of the contention that the judgment referred to in the statute, from the rendition of which the time to pay costs begins to run, is the judgment which is rendered in the trial court, rather than the judgment which happens to be rendered on writ of error. This is certainly the better view when, as in the ease at bar, the judgment of the trial court is not modified in any respect by the appellate tribunal, but is simply affirmed. An order of that nature is in reality a judgment rendered in a new suit, which is instituted in the appellate court by suing out a writ of error; and we can discover nothing in the Colorado statute which seems to indicate that the time limited to pay costs is to be computed from the rendition of the judgment in such new and independent proceeding. It is fair to presume that the statute refers to that judgment to which the motion to vacate and for a new trial must be addressed, rather than to the judgment rendered in the new suit, that is brought to correct, errors in the record.
Furthermore, we think that counsel for the plaintiff in error take undue liberty with the statute in question when they supply words so as to make it read, “whenever judgment shall be (finally) rendered,” etc., and when they assert that a judgment at nisi prius is not rendered, within the meaning of the statute, if the losing party has a right to prosecute a writ of error, until it has been thus reviewed, and until the proper appellate tribunal has declared that there is no error in the record. If that view is sound, it follows logically that a judgment is not rendered, within the contemplation of the statute, until- the time allowed to sue out a writ of error has expired, although long prior thereto the judgment may have
And finally, we entertain the opinion that litigants ought not to bt; encouraged to try the experiment in the first instance of obtaining a new trial for cause in an appellate court, by conceding to them the privilege after such attempt, and, after years of litigation, to then demand a new trial as a matter of right.
It follows that the circuit court properly denied the motion to vacate the judgment of November 21, 1885, and its 'action in that behalf is hereby affirmed.