Shea v. United States

224 F. 426 | 6th Cir. | 1915

PER CURIAM.

Plaintiffs in error were convicted in the District Court for the Northern District of Ohio, January 29, 1915, and sentences of fine and imprisonment imposed. On March 27, 1915, writ of error and citation were issued, returnable April 26, 1915. On April 24th, two days before the return day, the District'Judge made an order extending the time for preparing and filing bill of exceptions until May 30th. No extension of time for return has ever been made, and return has not been filed in this court. After the return day was past, application made to the District Judge for an extension of time for return of citation was refused, on the ground that he had no authority to make it. On May 14th the United States moved to docket and. dismiss the case, and on the same day plaintiffs in error filed a petition for the docketing of the cause and for order enlarging the time for return of citation until May 30th.

[1] Subdivision 2 of our rule No. 18 (202 Fed. xii, 118 C. C. A. xiv) provides that for good cause shown the judge who signed the citation, or any judge of this court, may enlarge the time for return “at or before its expiration, the order of enlargement to be returned with the record and filed with the clerk of this court.” Assuming that the District Judge had no authority to extend the time for return after it had once passed (Chamberlain Transp. Co. v. South Pier Coal Co. [C. C. A. 7] 126 Fed. 165, 61 C. C. A. 109), and that a judge of this court is equally without such power, it is nevertheless clear that the court itself to which the writ is returnable has the power to extend the time for return at any time during the term to which the writ is made returnable. Fvans v. State Bank, 134 U. S. 330, 331, 10 Sup. Ct. 493, 33 L. Ed. 917; Green v. Elbert, 137 U. S. 615, 11 Sup. Ct. 188, 34 L. Ed. 792; Gould v. United States (C. C. A. 8) 205 Fed. 883, 126 C. C. A. 1; Pender v. Brown (C. C. A. 4) 120 Fed. 496, 56 C. C. A. 646. The term to which the writ was made returnable has not yet passed.

[2] Having jurisdiction to extend the time for return, we should exercise it; for it is clear that the failure to procure an extension of time before the return day was an oversight, and while some of the assignments of error are imperfect, all are not so, and, moreover, this court has jurisdiction to allow necessary amendments. Additional reason for extending the return day is found in the fact that the time-for taking out writ of error has not yet expired, and, whether or not the first writ was dismissed, a second writ could be taken. Evans v. State Bank, supra; Chamberlain Transp. Co. v. South Pier Coal Co., supra; Gould v. United States, supra.

The application to docket and dismiss is denied, and the time for returning writ of error and citation and for docketing the cause in this court is extended until June 30, 1915.