No. 273 | 2d Cir. | Mar 8, 1911
In May, 1902, the plaintiff was seriously injured while a passenger on the steamship Columbia, owned by the defendant. In December, 1903, she began an action to recover damages for the injuries so received. The cause was tried in December, 1908, and the complaint was dimissed, and judgment entered March 3, 1909. The plaintiff sued out a writ of error dated November 1, 1909. On June 14, 1910, this court reversed the judgment, and on November 15, 1910, the action was again tried, and a verdict of $7,000 for the plaintiff was found by the jury. On December 5, 1910, the defendant made a motion similar to the one in hand, asking that all proceedings subsequent to the entry of the first judgment dismissing the complaint be set aside as void, because the writ of error to review the said judgment was not sued out within six months after the entry of the judgment. The motion was denied by this court. The present motion, involving the same fundamental question, was made without permission of this court.
It is true that the writ of error was not sued out within six months; but the papers submitted by the plaintiff abundantly show that long prior to the expiration of that period the plaintiff’s attorney presented the papers on appeal, including the writ of error, to the defendant’s attorney for the purpose of having him examine and accept them. The time to consider these papers- was extended for the accommodation of the defendant’s attorney by written stipulation until after the expiration of the six months from March 3, 1909. When the papers were presented for filing, the attention of the plaintiff’s attorney was called to the fact that the time had expired by the clerk of the Circuit Court. He immediately notified the attorney for the defendant, who expressed regret that such a situation had been brought about by an effort to accommodate him, and suggested and signed a stipulation that the writ of error might be filed nunc pro tunc. Without characterizing the action of the defendant's attorneys • in making these motions, we deem it sufficient to say that, if they intended to rely upon the objection now made, they should have taken it before the argument on the appeal in this court and before the new trial. Their action, in legal effect, was a consent to the acceptance of the situation which was brought about by their failure to present the question when the plaintiff’s rights might have been otherwise protected. Having appeared and argued the appeal, permitted the judgment of reversal to be entered, and taken part in the new trial without objection, they cannot avoid the adverse verdict by contending that the former judgment, that by their conduct they recognized as having been properly reversed, is still binding on the parties.
The motion is denied.