SANBORN v. BAY, 194 F. 37

ADAMS, Circuit Judge. This case was tried and judgment rendered on November 1, 1910, at the October term of the Circuit Court for the District of South Dakota, by Carland, then District Judge for that district. After Judge Carland’s appointment as Circuit Judge and designation to serve a term in the Court of Commerce, Judge Willard, the District Judge for the District of Minnesota, was by order of the senior Circuit Judge of this circuit designated and appointed to act as District Judge for the District of South Dakota until the appointment and quálification of Judge Carland’s successor.

On March 24, 1911, at the instance of the plaintiff in error, Judge Willard, who was then presiding in the Circuit Court pursuant to his designation and appointment, allowed and signed a bill of exceptions in this case which both parties had agreed to as correct. It is now claimed that Judge Willard had no power to perform those acts, and a motion is made to suppress the bill of exceptions and dismiss the writ of error.

Section 953 of the Revised Statutes provides that: “A bill of exceptions allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presiding judge thereof, if more than one judge sat on the trial of the cause.” By

an act approved June 5, 1900 (31 Stat. 270 [U. S. Comp. St. 1901, p. 696]), that

section was amended by adding the following: “And in case the judge before- whom the cause has heretofore been or may hereafter be tried is, by reason of death, sickness, or other disability, unable to hear and pass upon the motion for a new trial and allow and sign the bill of exceptions, then the judge who succeeds such trial judge, or any other judge of the court in which the cause was tried, holding such court thereafter, if the evidence in such cause has been or is taken in stenographic notes, or if the said judge is satisfied by any other means that he can pass upon such motion and allow a true bill of exceptions, shall pass upon said motion and allow and sign such bill of exceptions; and his ruling upon such motion and allowance and signing of such bill of exceptions shall be as valid as if such ruling and allowance and signing of such bill of exceptions had been made by the judge before whom such cause was tried. * * * ” Was there any such disability on the part of Judge Carland as authorized his successor, Judge Willard, to sign and allow the bill of exceptions in question?

When Judge Carland was appointed and confirmed Circuit Judge and accepted the position, he ceased to be District Judge of the court over which he presided when this case was tried. This seems to be conceded. The only question is: Did he by becoming a Circuit Judge retain the jurisdiction which before that time he had over the case? By the act approved June 18, 1910 (chapter 309, 36 Stat. pt. 1, p. 539) the Court of Commerce was created.

The President was authorized, by and with the advice and consent of the Senate, “to appoint five additional Circuit Judges * * * who shall hold office during good behavior and who shall be from time to time designated and assigned by the Chief Justice of the United States for service in the Circuit Court for any District, or Circuit Court of Appeals for any Circuit or in the Commerce Court.” These judges were, in the first instance, to constitute the new Court of Commerce for terms from one to five years each respectively. They were not appointed to be Circuit Judges of any particular circuit.

On the contrary, they were appointed to be Circuit Judges, subject to assignment from time to time by the Chief Justice for service either in some Circuit Court, some Circuit Court of Appeals, or in the Court of Commerce. It does not appear that judge Garland has ever been assigned for service in the Circuit Court for the District of South Dakota, and certainly it does not appear that he had been so assigned prior to March 24, 1911, when Judge W illard allowed and signed the bill of exceptions in this case.

We therefore conclude he then had no power to act judicially in an}' matters pending or requiring consideration in the court over which he formerly presided; and inasmuch as the allowance and signing of the bill of exceptions is a judicial act (Malony v. Adsit, 175 U. S. 281, 20 Sup. Ct. 115, 44 L. Ed. 163), he had no power to allow or sign it in this case. The remaining question is: Did this want of power or disqualification amount to a “disability” within the meaning of the act of June 5, 1900, which enabled Judge Willard, his actual successor, to allow and sign the bill of exceptions in this case?

The latter was authorized and empowered to do so only in case the judge who tried the case was “by reason of death, sickness or other disability unable to allow and sign the same.” It. is contended by defendant in error that tlie “other disability” here referred to means a disability of like character to that arising from “death or sickness” which immediately precede the words “other disability,” and they cite the case of American Bonding & Trust Co. of Baltimore v. Takahashi, 49 C. C. A. 267, 111 Fed. 125, in support of tlieir contention.

This case involved the question whether the casual or temporary absence of the trial judge from his circuit authorized a judge, assigned to aid or assist him, to allow and sign a hill of exceptions in a case tried beiore the regular judge himself. It was held in that case that such casual absence did not amount to the “disability” contemplated by the amended act of June 5, 1900, and some expressions are found in the opinion sustaining the contention of the defendant in error in this case.

While we might well agree with the conclusion reached in that particular case, we cannot think the act of 1900 was intended by Congress to limit the “disqualification” referred to, to one occasioned by physical or mental ailment. This in our opinion would be too narrow a construction. It would not seem to accomplish the legislative purpose or afford the relief which Congress intended to afford by the language actually employed. Inability to perform duty occasioned by death or sickness was obviously not the only disability Congress had in mind.

It employed a comprehensive term sufficient to cover all disqualifications,. and we do not think the artificial rule noscitur a sociis invoked by counsel was ever intended to be employed to thwart an obvious purpose. Nothing in fact could create a more effective “disability” than an utter disqualification of the presiding judge to perform the act which Congress attempted to provide for. We accordingly hold that a voluntary resignation of his office (which is practically the situation in this case) by a trial judge is an effective disqualification within the meaning of the act of 1900.

There is also a motion here to vacate the supersedeas claimed to have been obtained by the bond given on securing this writ of error. A judgment for $25,000 was rendered agajnst the defendant at the October term of the court, on November 1, 1910. At no time thereafter did the defendant invoke the provisions of

section 987, Rev. Stat., to secure a stay of execution for 42 days as therein provided, to enable him to file and present a petition for a new trial. On the contrary, he sought and secured a stay of execution for 60 days to enable the parties, in the language of the order, “to settle their bill of exceptions.” This stay was extended from time to time for the same expressed purpose until April 1, 1911. The bill of exceptions was 'allowed, signed, and filed on March 24th, and on March 25th a motion for .a new trial was filed, and this was overruled on April 1, 1911, prior to the expiration of the October term.

On April 17, 1911, at the next or April term of the court, the writ of error was sued out and a bond in the penal sum of $30,000 given to supersede the execution of the judgment until a hearing could be had in this court. Does this bond so given operate as a super-sedeas of the judgment?

Section 1007, Rev. Stat. (U. S. Comp. St. 1901, p. 714), provides that if a proper bond be given on appeal perfected or writ of error sued out and served within 60 days “after the rendering of the judgment complained of,” a supersedeas may be had. Kitchen v. Randolph, 93 U. S. 86, 23 L. Ed. 810; Logan v. Goodwin, 41 C. C. A. 573, 101 Fed. 654. If, therefore, the overruling of the motion for a new trial was the “rendering of the judgment complained of” within the meaning of

section 1007, then as the writ of error, accompanied with the proper security, was sued out and duly served within 60 days thereafter, the supersedeas must stand. It is a well-settled general rule that all orders, judgments, and decrees of federal courts are under the control of the court which rendered them' during the term at which they were rendered and -may be at any time during that term set aside, vacated, modified, or annulled by the court. Bronson v. Schulten, 104 U. S. 410, 415, 26 L. Ed. 797.

For many purposes the overruling of a motion for a new trial is the expression of the final judgmént of the court in a ’ given case, and when such a motion is entertained there is no final judgment in the case until it is' disposed of. In Brockett v. Brockett, 2 How. 238, 11 L. Ed. 251, the trial court had rendered a decree against the defendants, and afterwards, during the same term, bad entertained a motion to open it up for a certain purpose.

Within ' 10 days after the denial of this motion, but not within 10 days after the first entry of the decree, the defendant perfected his appeal to the Supreme Court and gave the required bond. Mr.

Justice Story, in speaking for the court on a motion to dismiss the appeal, said: “Now, the argument is that, as the original final decree was rendered more than one month before the appeal, it could not operate under the laws of the United States as a supersedeas, or to stay execution on the decree, because to have such an effect the appeal should be made and the bond should be given within ten days (as-the law then stood! after the final decree.

But the short and conclusive answer to this objection is that the final decree of the 10th of May (when it was originally entered) was suspended by the subsequent action of the court; and it did not tafee effect until the 9th of June (when the court acted on the motion to open up), and that the appeal was duly taken and the appeal bond given within 10 days from this last period.” Railroad Co. v. Bradley, 7 Wall. 575, 19 L. Ed. 274, was before the Supreme Court on a motion for a supersedeas.

The motion was made, during the term at which a decree- was rendered to rescind that decree, and this motion was entertained, heard, and denied. The Supreme Court, speaking by Chief Justice Chase, said: “Thc.ro is no doubt that, during the term, the decree was, at all times, subject to be rescinded or modified, upon motion, and could not, therefore, be regarded as absolutely final until the end of the term. It became final, in this case, when the motion to rescind had been heard and denied.

This took place on the 13th of March, and on the 20th the appeal was prayed in open court, and on the 23d the bond on appeal was approved and filed. We think this was in time, and the motion for supersedeas must therefore be allowed.” In Memphis v. Brown, 94 U. S. 715, 24 L. Ed. 244, the Supreme Court, deciding a motion to vacate a supersedeas, said: “Older the ruling in Brockett v. Brockett, 2 How. 241 [11 L.

Ed. 251], the motion made during the term to set aside the judgment of March 2d suspended the operation of that judgment, so that it did not take final effect for the purposes of a writ of error until May 20th, when the motion was disposed of.” In Texas Pacific Railway Co. v. Murphy, 111 U. S. 488, 4 Sup. Ct. 497, 28 L. Ed. 492, a motion was submitted to the court to dismiss a writ of error and vacate a supersedeas because the writ of error was not sued out and served within 60 days after the first entry of the judgment; a petition For rehearing having afterwards been -made, entertained, and denied by the court.

The Supreme Court, speaking by Chief Justice Waite, said: “It was expressly ruled in Brockett v. Brockett, which has been followed in many cases since, that if a petition for rehearing is presented in season and entertained by the court, the time limited for an appeal or writ of error does not begin to run until the petition is disposed of.” In Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31, 36, 14 Sup. Ct. 4, 6 (37 L.

Ed. 986), the Supreme Court, speaking again on this question, said: “The rule is that if a motion or a petition for rehearing is made or presented in season and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the motion or petition is disposed of. Until then the judgment or decree does not falce final efícct for the purposes of the writ of error or appeal" — citing cases. See, also, to the same effect, Northern Pacific Railroad Co. v. Holmes, 155 U. S. 137, 15 Sup. Ct. 28, 39 L. Ed. 99. In Kingman v. Western Mfg. Co., 170 U. S. 675, 678, 18 Sup.

Ct. 786, 787 (42 L. Ed. 1192), the Supreme Court, speaking of the effect of a motion for a new trial in an action at law, said: “No leave to file it was required, and as it was entertained by the court, argued by counsel without objection, and passed upon, it must be presumed that it was regularly' and properly made. This being so, the case falls within the rule that if a motion or a petition for rehearing is made or presented in season and entertained by the court, the time limited for a writ of error ox-appeal does not begin to run until the motion or petition is disposed of.

Until then the judgment or decree does not take final effect for the purposes of the writ of error or appeal” — citing, among others, the case of Brockett v. Brockett, supra. From the foregoing it can safely be said that the doctrine originally announced in Brockett v. Brockett has been persistently adhered to,' and that, until a petition or motion for a new trial in an action at law actually entertained by the court has been disposed of, the judgment before that time rendered does not take final effect for the purposes of a writ of error.

This would seem to be conclusive of the question before its; but it is contended that, because defendant failed to avail himself of the provisions of

section 987, Rev. Stat. (U. S. Comp. St. 1901, p. 708), and secure a stay of execution for 42 days, and because he did not, within that time, file his petition for a new trial, the 60 days provided for in

section 1007 within which the writ of error must be sued out and bond given in order to operate as a supersedeas was not enlarged by the filing of such a petition thereafter. This presents a new question.

Section 987 is as follows: “When a Circuit Court enters a judgment in a civil action, either upon a verdict or on a finding of the court upon the facts, in cases where such finding is allowed, execution may, on motion of either party, at the discretion of the court, and on such conditions for the security of the adverse party as it may judge proper, be stayed forty-two .days from the time of entering judgment, to give time to file in the clerk’s office of said court a petition for a new trial. * * * ”

Section 1007 is as follows: “In any case where a writ of error may be a supersedeas, the defendant may obtain such supersedeas by serving the writ of error, by lodging a copy thereof for the adverse party in the clerk’s office where the record remains, within sixty days, Sundays exclusive, after the rendering of the judgment complained of, and giving the security required by law on the issuing of the citation.” These two sections seem to be quite independent of each other and to cover separate and distinct subjects of legislation. The first, or

section 987, does not in terms relate either .to appeals or writs of error or to the supersedeas of the judgment, sought to be reviewed in an appellate court. It rather relates to a method of securing a deliberate reconsideration of a judgment or decree by the court which rendered it without the embarrassment which would occur if imme-díate execution of the judgment were permitted, and yet on such conditions as secured the payment of the judgment if allowed to stand.

It is well known by the profession that prior to the creation of the Circuit Courts of Appeals at a time when these sections were enacted by Congress few cases, comparatively speaking, ever found their way from the trial court to the Supreme Court of the United States, the then only available court of review.

The fact that no appeal or writ of error could be prosecuted unless $5,000 or more was involved, the long distance from the places of trials to the seat of government where the Supreme Court was held, and the heavy expense attending the proceeding, were largely prohibitive of any review of the work of a trial judge. As a result his judgment in a large majority of cases was final.

In view of this situation, it was quite a reasonable thing that provision should be made insuring the fullest opportunity, consistent with ample security to the judgment creditor, for the trial court to reconsider its own judgments upon petitions for a new trial. Lest the right of a suitor to invoke such reconsideration should be lost or impaired by the hasty execution of a judgment, the statute'seems to have for its object and purpose the stay of such execution until such petition could be definitely and intelligently filed and considered. In Felton v. Spiro, 24 C. C.

A. 321, 78 Fed. 576, Circuit Judge Taft, speaking for the Court of Appeals for the Sixth Circuit, said: “Section 987, Rev. St., rolled on, rentes only to method of staying execution rending new trial, and (loos not limit the time in which motions for new trial may he otherwise filed.” In Rutherford v. Penn. Mut. Life Ins. Co. (C. C.) 1 Fed. 456 (a case favorably commented upon by the Supreme Court in Kingman v. Western Mfg. Co.) Circuit Judge McCrary, speaking of this

section of the statutes, said: "This

section still further provides for motions of this character (namely, to secure a reconsideration by the trial court of questions which had arisen in the course of trial), raid it applies to the case where a party is not prepared at the time of trial to immediately file his motion. It provides for giving time within which that may he done.

« • * This (section) provides for a case where lie (the party) desires to obtain from the court an extension (¡f the usual time within which to make his application for a new trial; and in that case * * * he must show that lie has presented his petition, and that it has been allowed in accordance with the provisions of the sect ion; but if he makes his motion for a new trial without asking for the time, then he can make it independent of

section 987, and is not bound by the provisions of that section. In other words, the court had a perfect right to entertain the motion for a new trial; it did entertain it, and suspended the execution until it should he determined.’’

Section 1007, on the other hand, at the outset contemplates and provides for the supersedeas of a judgment on suing out of a writ of error. It deals with another subject from that involved in

section 987 and is exclusively concerned with the question of securing a review of a judgment, not by the court which rendered it, but by an appellate tribunal. As already pointed out, a judgment or decree does not become final for the purposes of a writ of error or appeal until the motion for a rehearing which the court sees fit to entertain is disposed of. Why does not this established principle definitely dispose of the question before us ? A supersedeas cannot be secured until an appeal is taken or a writ of error is sued out, and this cannot be done until a motion for a new trial, if made, is denied.

The only answer to this argument is that the motion for a new trial, in order to be effective to enlarge the time for securing a su-persedeas, must be filed within the 42 days prescribed by

section 987. The most obvious answer to this is that the statute does not say so. Not only so,.but for reasons already stated, the two sections, 987 and 1007, serve two distinct purposes and manifestly weré not intended to modify or limit each other in respect of the separate and distinct relief contemplated by them. It is suggested that the cases of Sage v. Railroad Company, 93 U. S. 412, 23 L. Ed. 933, and Cambuston v. United States, 95 U. S. 285, 24 L.

Ed. 448, are in conflict with the conclusion reached in this case; but, after a careful consideration of them in connection with the other cases cited by us, we are unable to so construe them. The first-mentioned case concerns the right of a third party and not a party to the suit. The holding was that a motion made by such third party who was permitted to intervene, only for the purpose of an appeal from a final decree, will not operate to suspend such decree. The Cambuston Case had to do only with sections 786 and 987 and involved no consideration of the rights conferred by

section 1007. It results that the motion to vacate the supersedeas must be denied.