294 F. 185 | 8th Cir. | 1923
This is a writ of error from a judgment awarding damages for personal injuries. No attack is made here on the liability for the injury but the challenge is aimed at the measure and the amount of damages.
Before we can reach consideration of the merits of the above challenge, we must determine several motions filed in this- court. To understand these motions, it is necessary to set forth the proceedings in the trial court in connection with the judgments, writs of error and bills of exceptions. For convenience, plaintiffs in error will be referred to as the companies and the defendant in error by name. On September 13, 1922, judgment was entered upon a verdict; on the same
The above outline reveals that two judgments were entered (one on the verdict and one on the remittitur); two writs of error were allowed and two bills of • exceptions (the first withdrawn later) approved and filed. In justice to .the trial court, it should be stated that various of the above orders were made by different judges who probably were not thoroughly informed as to the different steps theretofore taken. The writ of error before us is that allowed January 4, 1923, and the bill of exceptions contained in the transcript is that approved and filed February 8, 1923.
Warinner filed here three motions as follows: (1) To dismiss the writ of error allowed January 4, 1923; (2) to dismiss the writ of error allowed September 25, 1922, or to affirm the judgment entered September 13, 1922; (3) to strike the bill of exceptions from the record. Thereafter, the companies filed their motion to docket the case on the writ of error allowed September 25, 1922, “and upon the record filed in this court as aforesaid on April 12, 1923.”
The contentions of Warinner upon his motions are that the first writ of error was perfected; that it transferred jurisdiction from the trial court except in so far as necessary to complete the record on the writ; that, therefore, there was no jurisdiction in the trial court to consider the motion for new trial, to alter the first judgment, to allow a second writ of error or, after expiration of the 60 days given therefor on September 13,1922, to approve a bill of exceptions. The companies say:
*188 “It is the, contention of the plaintiffs in error that both writs were properly allowed, and that both writs are before this court for consideration; that the-court acted within its jurisdiction in entering the judgment of January '4, 1923, and that citation was properly issued thereon, and that even if this be not true, the case is before the court on the writ of error and citation issued on the original judgment.”
As all steps in these writs of error took place in the trial court, we are not concerned with the situation where such are the orders or results of orders of an appellate court or an appellate justice or judge.
The applicable law is -as follows:
(1) Before an appeal or writ of error has been perfected, the trial court has jurisdiction to vacate the incomplete appeal or writ of error and thereafter proceed as though such steps toward appellate review had not been taken. Cherokee Nation v. Whitmire, 223 U. S. 109, 32 Sup. Ct. 200, 56 L. Ed. 370; Aspen M. & S. Co. v. Billings, 150 U. S. 31, 35, 14 Sup. Ct. 4, 37 L. Ed. 986 s Brandies v. Cochrane, 105 U. S. 262, 26 L. Ed. 989; Goddard v. Ordway, 101 U. S. 745, 752, 25 L. Ed. 1040.
(2) After an appeal or writ of error has been perfected but has" “spent its force” (Evans v. Bank, 134 U. S. 330, 10 Sup. Ct. 493, 33 L. Ed. 917) or has clearly been abandoned (Gould v. U. S., 205 Fed. 883, 123 ,C. C. A. 480, this court), the trial court may, within proper time after entry of the judgment or decree to be reviewed, allow another appeal or writ of error.
(3) While an appeal or writ of error, which has been perfected, is in force all jurisdiction over the case is transferred from the trial to the appellate court (Hovey v. McDonald, 109 U. S. 150, 3 Sup. Ct. 136, 27 L. Ed. 888; Keyser v. Farr, 105 U. S. 265, 26 L. Ed. 1025; Draper v. Davis, 102 U. S. 370, 26 L. Ed. 121; Cochran v. Becker [C. C. A.] 276 Fed. 280, 283, in this court; Citizens’ Bank v. Farwell, 56 Fed. 539, 6 C. C. A. 30, in this court; McKay v. Neussler, 148 Fed. 86, 88, 78 C. C. A. 154, 9th Circuit; In re Gustin [D. C. Michigan] 281 Fed. 320; Purman v. Marsh, 49 App. D. C. 125, 261 Fed. 1005;. Kendrick v. Roberts [D. C. Georgia] 214 Fed. 268; St. L. & S. F. R. Co. v. Roughmiller [D. C. Oklahoma] 193 Fed. 689, 694; Clarke v. Bank [D. C. Nevada] 131 Fed. 145; Morrin v. Lawler [C. C. New York] 91 Fed. 693; see, also, Anderson v. Comptois, 109 Fed. 971, 975, 48 C. C. A. 1 [9th Circuit]); except that the trial court may do such things as are appropriate to perfect the record to go to the appellate court (Hovey v. McDonald, 109 U. S. 150, 157—159, 3 Sup. Ct. 136, 27 L. Ed. 888) or to protect the res pending the review (Merrimack R. Sav. Bank v. Clay Center, 219 U. S. 527, 31 Sup. Ct. 295, 55 L. Ed. 320, Ann. Cas. 1912A, 513; Goddard v. Ordway, 94 U. S. 672, 24 L. Ed. 237; Bronson v. R. R., 1 Wall. [68 U. S.] 405, 17 L. Ed. 616). Of course, action by the trial court’must be within the term or time required by law, whether such action be pending a perfected review or not.
(4) While there is some confusion as to the effect of different steps in the perféction of an appeal or writ of error, this muda seems certain: That allowance and issuance of a writ „or error, Tiling the assignment of errors, approval of a required bond and signing the-
Here, the first writ of error was fully perfected since the petition for the writ and the assignment of errors were filed, the writ allowed and issued, a supersedeas bond approved and filed and the citation signed. It has never “spent its force” because the term of this court at which such case should be docketed has not passed. Nor has it been abandoned, as the companies are now presenting their motion to docket the case under that writ and state in their brief that:
“It is the contention of the plaintiffs in error that both, writs were properly allowed, and that both writs are before this court for consideration; that the court acted within its jurisdiction in entering the judgment of January 4, 1923, and that citation was properly issued thereon, and that even if this be not true, the case is before the court on the writ of error and citation issued on the original judgment.”
As the first writ of error had been perfected, the trial court had no jurisdiction, pending the same, to permit a motion for new trial to be filed or to take any action thereon or affecting the existing judgment.
The results of the application of the above rules of law to this state of facts and to the motions are (1) that the motion to dismiss the second writ of error should be sustained because the trial court was without jurisdiction to entertain such a matter while the first writ was alive; (2) the motion to dismiss the first writ of error must be denied and the motion to docket the case on such writ must be sustained because, first, Warinner has not complied with rule 16 of this court governing this matter, and, second, because, even had he so complied, this court has a discretion in the enforcement of that rule permitting it to act as justice seems to demand and we deem it proper to allow such docketing in the interests of justice.
The above disposition leaves the cause docketed in this court upon the first writ of error. It leaves undisposed the motion to strike the bill of exceptions and the motion to hear the cause “upon the record filed in this court as aforesaid on April 12, 1923,” which is the record brought up on the second writ and containing but one bill of exceptions, to wit, that approved and filed on February 8, 1923. The term at which the judgment covered by the first writ ot error was entered had expired before this*bill was approved. The 60-day extension for filing the. bill, given September 13, 1922, had likewise expired. Therefore, the time within which the bill of exceptions could be filed had passed and the court had no jurisdiction to allow and make any bill of exceptions a part of this record. It must follow, that the motion to strike the bill of exceptions must be sustained and the motion to hear the cause on such bill must be denied.
The order will be that the motions will be disposed of as above indicated and the judgment of September. 13, 1922, affirmed.
