No. 445 | 5th Cir. | Jan 21, 1896
The defendant in error moves to dismiss the writ of error in this case upon the following grounds: (1) No petition for a writ of error was made or hied herein. (2) No writ of error was allowed herein, on petition or otherwise. (3) The writ of error was issued by the clerk of the circuit court in which judgment sought to be reviewed was rendered, without a petition filed therefor, and without an allowance thereof by a judge of said circuit court, or by a judge of the circuit court of appeals of the Fifth circuit, authorized by law to allow such writ of error. (4) The only action taken in respect of, or in reference to, the appeal based on the said writ of error herein, by a judge authorized by law to allow
We have examined the record and considered the argument of counsel. The judgment in the court below was rendered on the 1st day of May, 1895, and thereupon a motion for a new trial was entered, which was overruled on thé 2d day of June, 1895. . The citation directing the defendant in error to answer in this court was signed and issued on the 9th day of November, 1895, more than six months after the entry of the judgment. sought to be reviewed, but within six months from, the date when ike motion for a new trial was overruled. The time limited for suing out a writ of error does not begin to run while there is a motion for a new trial pending. Railway Co. v. Murphy, 131 U. S. 488, 4 Sup. Ct. 497. A formal petition for the allowance of a writ of error, in order to vest the appellate com r with juriwli'dion, is not necessary. Davidson v. Lanier, 4 Wall. 447" court="SCOTUS" date_filed="1867-01-14" href="https://app.midpage.ai/document/davidson-v-lanier-87787?utm_source=webapp" opinion_id="87787">4 Wall. 447: Ex parte Virginia Com’rs, 112 U. S 177, 5 Sup. Ct. 421. Even in case of appeal,, the approval of the bond and signing of citation ha., been held to be a sufficient allowance of the appeal. Brandies v. Cochrane, 105 U.S. 262" court="SCOTUS" date_filed="1882-03-13" href="https://app.midpage.ai/document/brandies-v-cochrane-90571?utm_source=webapp" opinion_id="90571">105 U. S. 262, and cases there cited. In the instant case, the judge of the circuit court signed the citation, and accepted thfe bond tendered. It seems very clear that the motion to dismiss this writ, of error bn the grounds stated should Toe overruled, and it is so ordered.