No. 358 | 7th Cir. | Jan 4, 1897
The citation in this case was issued September 15, and made returnable October 14, 1896. On the ensuing 39 th the judge who signed the citation made a nunc pro tunc order, as of the 14 th, extending the time for filing the record to October 24, 1896. Two days before the expiration of that time, the plaintiff in error caused the case to be docketed in this court, and on the next day a motion to dismiss the writ of error, because the case was not docketed in time, was filed. The case of West v. Irwin, 9 U. S. App. 547, 4 C.C.A. 401" date_filed="1893-02-18" court="7th Cir." case_name="West v. Irwin">4 C. C. A. 401, and 54 Fed. 419, is cited in support of the motion. That case was explained and distinguished in the opinion upon the motion of Daenell, intervener, in Farmers’ Loan & Trust Co. v. Chicago & N. P. R. Co., 34 U. S. App. 626, 19 C.C.A. 477" date_filed="1896-03-26" court="7th Cir." case_name="Farmers' Loan & Trust Co. v. Chicago & N. P. R.">19 C. C. A. 477, and 73 Fed. 314. Rule 16 of this court (11 C. C. A. cvi.; 47 Fed. viii.), in respect to the dismissing of cases for failure to docket in time, is essentially the same as rule 9 of the supreme court (12 Sup. Ct. ix.), in respect to which in Owings v. Tiernan, 10 Pet. 24" date_filed="1836-01-18" court="SCOTUS" case_name="Owings v. Lessee of Tiernan">10 Pet. 24, that court said:
“The rule of the court for docketing and dismissing causes has never been applied to any case where, before the motion was made, the cause had been actually placed on the docket.”
See, also, Gwin v. Breedlove, 15 Pet. 284" date_filed="1841-02-18" court="SCOTUS" case_name="Gwin v. Breedlove">15 Pet. 284; Bingham v. Morris, 7 Cranch, 99" date_filed="1812-02-13" court="SCOTUS" case_name="Schooner Catherine v. U. STATES">7 Cranch, 99; and Sparrow v. Strong, 3 Wall, 103.
This court ruled the same way in the case of Chicago Dollar Directory Co. v. Chicago Directory Co., 24 U. S. App. 525, 13 C.C.A. 8" date_filed="1895-01-18" court="7th Cir." case_name="Chicago Dollar Directory Co. v. Chicago Directory Co.">13 C. C. A. 8, 11, and 65 F. 463" date_filed="1895-01-18" court="7th Cir." case_name="Chicago Dollar Directory Co. v. Chicago Directory Co.">65 Fed. 463, and in an earlier unreported case. In the First circuit a like ruling was made in Andrews v. Thum, 21 U. S. App. 459, 12 C. C. A, 77, and 64 F. 149" date_filed="1894-06-23" court="1st Cir." case_name="Andrews v. Thum">64 Fed. 149; and in other circuits the decisions favor a liberal practice. Freeman v. Clay, 2 U. S. App. 151, 1 C.C.A. 115" date_filed="1891-11-27" court="5th Cir." case_name="Freeman v. Clay">1 C. C. A. 115, and 48 Fed. 849; McClellan v. Pyeatt, 4 U. S. App. 98, 1 C.C.A. 241" date_filed="1892-02-01" court="8th Cir." case_name="McClellan v. Pyeatt">1 C. C. A. 241, and 49 Fed. 259; The Chatham, 8 U. S. App. 104, 3 C. C. A. 161, and 52 F. 396" date_filed="1892-10-11" court="4th Cir." case_name="Marsh v. Hall">52 Fed. 396; State of Florida v. Charlotte Harbor Phosphate Co., 30 U. S. App. 536, 17 C.C.A. 472" date_filed="1895-12-03" court="5th Cir." case_name="State v. Charlotte Harbor Phosphate Co.">17 C. C. A. 472, and 70 Fed. 883; Jones v. Mann, 18 C. C. A. 442, 72 Fed. 85.
The motion is overruled.