Woods et al. v. Lindvall, 48 F. 73

Thayek, J., (after dating the facts as above.) We are all agreed that the motion to strike out the bill of exceptions should be overruled. It is true that in several cases cited by counsel for defendant in error, to-wit, Walton v. U. S., 9 Wheat. 651; Ex parte Bradstreet, 4 Pet. 102, and Muller v. Ehlers, 91 U. S. 249, — it was held in effect that, in. the absence of an order of court extending the time, a bill of exceptions covering- errors committed at the trial cannot bo allowed and filed (unless by consent of parties) after the term has expired at which the judgment was rendered.

But in none of these cases did the question arise whether a bill of exceptions may not be allowed and filed at the term when the motion for a new trial is finally acted on, even though such action is taken at a term subsequent to the entry of judgment ; and that is the precise question which confronts us in the case at bar. The authorities cited are either cases in which no motion for a new trial was filed, or in which the bill of exceptions was presented after the lapse of the term at which the motion for a new trial was overruled.

According to well-established principles, therefore-, the judgments involved had become final at a term preceding that at which a bill of exceptions was tendered. Since the decision in Rutherford v. Insurance Co., 1 Fed. Rep. 456, we believe .the practice has been uniform in all the districts of this circuit, where the custom prevails of entering judgment immediately on the rendition of verdict, to allow a bill of exceptions daring the term at which the motion for a new trial is overruled, even though it happens to be a term subsequent to the entry of judgment.

This practice, according to our observation, has become so common that it may be termed a rule of'procedure in this circuit. It is a convenient practice. It obviates the necessity of settling a bill of exceptions at the trial term, which is useless labor if a motion for a now trial is continued to and is sustained at the succeeding term. And in those days, when it is customary to take notes of trial proceedings in short-hand, the practice in question is not open to those objections formerly urged against it.

We are of the opinion, therefore, that the practice which has hitherto obtained in many districts of the circuit should be upheld unless it is overborne by controlling authority, arid we find no such authority. On the contrary, we think tlie rule requiring bills of exception to be filed at the term rvhen judgment is rendered must be understood to mean the term when the judgment becomes final, and by reason of its becoming final the court losés control of the record.

It has been held several times that, if a motion for anew trial is duly filed by leave at the trial term, the judgment dries not become final imtil such motion is determined. Rutherford v. Insurance Co., supra; Brown v. Evans, 8 Sawy. 502, 17 Fed. Rep. 912; Railway Co. v. Murphy, 111 U. S. 488, 4 Sup. Ct. Rep. 497; Brockett v. Brockett, 2 How. 238; Memphis v. Brown, 94 U. S. 716, 717; Slaughter-House Cases, 10 Wall. 289. In some of the state courts, also, the precise question of practice now before us has been determined adversely to the defendant in error.

Thus, under a statute of the state of Missouri requiring all exceptions to be filed during the term at which they were taken, and all exceptions during the trial of a cause to be embraced in one bill,’it has been held that the continuance of a motion for a new trial from the tidal term to- a succeeding term keeps the record open, prevents the judgment from becoming final, and enables the court to allow a bill of exceptions during the term at which the motion is finally determined. Riddlesbarger v. McDaniel, 88 Mo. 138; Henze v. Railroad Co., 71 Mo. 636, 644. See, also, Bank v. Steinmitz, 65 Cal. 219, 3 Pac.

Rep. 808. We hold, therefore, that the bill of exceptions in the present case was properly allowed and filed, and we accordingly overrule the motion to expunge it from the record.