Kingman v. Western Mfg. Co., 170 U.S. 675 (1898)

Kingman v. Western Manufacturing Company

No. 248

Submitted May 4, 1898
Decided May 28, 1898
170 U.S. 675

CERTIORARI TO THE CIRCUIT COURT

OF APPEALS FOR THE EIGHTH CIRCUIT

Syllabus

A judgment is not final, so that the jurisdiction of the Appellate Court may be invoked, while it is still under the control of the trial court, through the pendency of a motion for a new trial.

The Western Manufacturing Company, a corporation of the State of Nebraska, brought its action against Kingman & Company, a corporation of the State of Illinois, in the Circuit Court of the United States for the District of Nebraska, seeking a recovery of various amounts, on four causes of action, and demanding judgment in the aggregate for the sum of $18,990. Such proceedings were had that the cause duly came on for trial before a jury at the May term, 1895, of said court, which resulted in a verdict on June 4, 1895, one of the days of that term, against Kingman & Co. for the sum of $1,996.66. On the coming in of the verdict, the court, according to the practice in that jurisdiction, at once rendered judgment on the verdict. On June 6, 1895, it being still the May term, Kingman & Company filed its motion to vacate and set aside the judgment and for a new trial of the cause, for various reasons therein stated. The motion was heard, and on December 11, 1895, being one of the days of the November term, 1895, of the court, was overruled by an order entered that day in the following terms:

This cause, having been heard on the motion of the defendant to set aside the judgment and the verdict and for a new trial herein, was argued and submitted to the court by the attorneys for the respective parties; whereupon, after careful consideration thereof and being fully advised in the premises, it is now on this day considered, ordered, and adjudged by the court that said motion be, and the same is hereby, overruled, and that the judgment heretofore entered herein be and remain absolute.

On the next day, December 12th, one of the days of the November term, an order was entered giving Kingman & Company 30 days from that date "in which to prepare and present its bill of exceptions herein."

The bill of exceptions was duly served on the attorneys for the Western Manufacturing Company, and was by them endorsed, "Dec. 30, 1895. Returned without amendment;" was presented to the trial judge for his signature, and was by him duly allowed, signed, and filed January 11, 1896. The petition of Kingman & Company for writ of error and an assignment of errors were filed, the writ of error duly allowed and issued, bond approved and filed, and citation signed, all on January 20, 1896. The citation was served January 21, and returned, and filed January 22. The record was filed in the Circuit Court of Appeals for the Eighth Circuit, March 14, 1896, and was printed. On the first day of May, 1896, the Western Manufacturing Company filed its motion in the circuit court of appeals to dismiss the appeal because the court had no jurisdiction of the cause, and because more than six months had intervened between the date of the rendition of the judgment in the action and the date of allowing and taking out the writ of error, of the filing of the petition for the writ of error, of the filing of the assignment of errors, of the filing of the bond, and of the service of the citation. This motion was sustained, and the writ of error dismissed, with costs, for want of jurisdiction. A petition for rehearing was denied, and thereafterward a writ of certiorari was issued removing the cause to this Court.