ALTENBERG et al. v. GRANT et al., 83 F. 980

TAFT, Circuit Judge. The defendants in error, appearing for the purpose of the motion only, have made a motion to dismiss the writ of error in this case on the ground that the proceeding in error has not been perfected by the plaintiffs in error within the time required bylaw. The facts, as shown by the record, are as follows: The action below was at law. The trial before the court and a jury resulted in a verdict for defendants on the 12th of November, 1895. Judgment was at once entered upon the verdict, and costs were awarded to defendants against plaintiffs.

On November 15th following, plaintiffs filed a motion.for a new trial. This motion was denied on December 17, 1895. On June 15, 1896, a writ of error was allowed, and a bond was filed and approved. The writ of error was made returnable July 15, 1896, hut was not in fact returned until July 16, 1896. A citation against all the defendants in error was signed by the judge at the circuit. It was returned June 30th, executed on only one of the defendants in error. The marshal gave as a reason for not serving the other defendant that the plaintiffs in error had made no deposit for costs.

So the matter stood unti.1 February 27,1897, when a new citation was issued, signed by a judge of this court, and was executed and returned March 27, Í897. Three grounds are urged for a dismissal of the writ- of error. The first is that more than six months elapsed after the rendition of the judgment sought to he reviewed before the allowance of Use writ of error. If the time for the writ of error began to ran from the date of the judgment, the contention is good. If, however, the period of limitation dates from the order denying the motion for a new trial, the writ of error was seasonably allowed.

We have no donbt that the motion for a new trial suspends the running of the statute. In some states, judgment is withheld until the defeated party shall have had time to file a motion for a new trial, and, pending the hearing of the motion, judgment is never entered. In other states, — -and this is true in Kentucky, — judgment is entered upon the verdict at once, and motions for new trials are made always after judgment.

It is certainly the understanding of the bar that, until the motion for a new trial has been disposed of. the judgment is not ripe for review; and it is the duty of this court, so far as the authorities will permit, to avoid a construction of the rules and statutes governing writs of error and appeals which would be a surprise to practitioners and effect undeserved hardships.

We think the decisions of the supremo court justify us in holding that a motion for a new trial like a petition for rehearing filed during the term in which the judgment is rendered postpones the running of the period of limitation until the motion is disposed of. Memphis v. Brown, 94 U. S. 715, 717; Railway Co. v. Murphy, 111 U. S. 488, 4 Sup. Ct. 497; Brockett v. Brockett, 2 How. 238; Slaughter-House Oases, 10 Wall. 289.

The question whether an execution would run on the judgment pending (he motion is not necessarily, we think, the test of when the time within which a writ of'error must be allowed begins to run. It is sufficient to say as was said in Memphis v. Brown, ubi supra, that, pending a motion to set aside a judgment, it does not “take final effect, for the purposes of a writ of error,” until the motion is disposed of. 2 Fost. Fed. Prac. § 483; Desty, Fed.

Prac. (6 th Ed.) § 1008. • Nor do we regard the objection that the writ was returned and the record filed here one day after it was made returnable of serious moment Bingham v. Morris, 7 Cranch, 99, shows that, if the transcript, of the record is filed before the motion for dismissal, the motion will not be granted. The last objection is that the alias citation was not returned served until March, 1897. The citation was returnable in vacation after the adjournment of the October term, 3895. The term next ensuing began in October, 1896.

The citation here in question was issued, and returned served in the October term, 1896. This is, according to the precedents, in sufficient time, if the court, in its discretion, permits it to be done. In Jacobs v. George, 150 U. S. 415, 14 Sup. Ct. 159. it was held that when an appeal is allowed at the term of a judgment, but is not perfected until after the term, a citation is necessary to bring in the parties, but that, if the writ of error be docketed m the court of review at its next ensuing term, a citation may be issued by leave of that court, although the time for taking the writ of error has elapsed.

This writ of error -was seasonably docketed here, and this court, upon motion, directed the citation to issue at this, the term next ensuing after the term at which the writ was allowed. The citation was therefore issued, served, and returned before the writ of error became inoperative. Green v. Elbert, 137 U. S. 615, 11 Sup. Ct. 188; Richardson v. Green, 130 U. S. 104, 9 Sup. Ct. 443; Hewitt v. Filbert, 116 U. S. 142, 6 Sup. Ct. 319; Evans v. Bank, 134 U. S. 330, 10 Sup. Ct. 493. The motion to dismiss is denied.