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
Page 170 U. S. 676
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.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
Page 170 U. S. 677
In
Aztec Mining Co. v. Ripley, 151 U. S.
79, it was held that this Court had jurisdiction by
appeal or writ of error to pass upon the jurisdiction of the
circuit courts of appeals in cases involving the question whether
their judgments were made final by section 6 of the Act of March 3,
1891, 26 Stat. 826, c. 517. The present case was one of the classes
of cases in which the judgments of the circuit courts of appeals
were made final, and therefore the remedy was properly sought by
certiorari.
By section eleven of that act, it is provided that
"no appeal or writ of error by which any order, judgment, or
decree may be reviewed in the circuit courts of appeals under the
provisions of this act shall be taken or sued out except within six
months after the entry of the order, judgment, or decree sought to
be reviewed."
By section six, the circuit courts of appeals are empowered to
review final decisions of the district and circuit courts, except
where cases are carried, under section five, directly to this
Court; but by the seventh section, as amended by the act of
February 19, 1895, 28 Stat. 666, c. 96, jurisdiction is given to
the courts of appeals of appeals from interlocutory orders in
injunction proceedings.
Kirwan v. Murphy, 170 U.
S. 205.
This provision is an exception to the general rule, and, while
the language of section eleven refers to the entry of the order,
judgment, or decree, yet the meaning must be confined to final
orders, judgments, or decrees.
The question is, then, whether the judgment of which Kingman
& Company complained became final for the purposes of a writ of
error six months before the writ was sued out.
By section 726 of the Revised Statutes, the courts of the United
States are empowered to grant new trials "for reasons for which new
trials have usually been granted in the courts of law;" and by
section 987, provision is made where judgment had been entered on a
verdict, or a finding of the court on the facts, for stay of
execution for forty-two days, on motion for time to file a petition
for a new trial, and, if such petition should be filed by leave
within that time, execution
Page 170 U. S. 678
was further stayed as of course, and "if a new trial be granted,
the former judgment shall thereby be rendered void." These sections
were brought forward from sections seventeen and eighteen of the
original Judiciary Act of September 24, 1789, and the latter
section is supplementary and additional to the other.
At common law, motions for new trial were made before judgment,
but under the statutes of many of the states, judgment is entered
at once on the return of the verdict, and the motion for new trial
made afterwards.
By section 5889 of the Compiled Statutes of Nebraska,
applications for new trial must be made at the term when the
verdict is rendered (except on the ground of newly discovered
evidence) and within three days after verdict, unless unavoidably
prevented.
The motion for new trial in this case was filed within three
days after the return of the verdict, and seasonably within the
rule of the state statute, or the common law rule, and, it is said,
within the rule enforced by the United States courts in that
district. 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
or 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.
Aspen
Mining & Smelting Co. v. Billings, 150 U. S.
31;
Voorhees v. Noye Manufacturing Co.,
151 U. S. 135;
Brockett v.
Brockett, 2 How. 238;
Texas & Pacific
Railway v. Murphy, 111 U. S. 488;
Memphis v. Brown, 94 U. S. 715;
Northern Pacific Railroad v. Holmes, 155 U.
S. 137. In
Memphis v. Brown, the judgment was
in mandamus, and a motion had been made to set it aside, which was
denied, and thereupon the judgment was reentered. The question here
arose on a motion to vacate the supersedeas because the writ of
error was not seasonably sued out within
Page 170 U. S. 679
section 1007, Rev.Stat., sixty days having elapsed since the
judgment was originally entered, and Mr. Chief Justice Waite,
delivering the opinion of the Court, said:
"Under the ruling in
Brockett v. Brockett, 2 How.
241, the motion made during the term to set aside the judgment of
March 2 suspended the operation of that judgment, so that it did
not take final effect for the purposes of a writ of error until May
20, when the motion was disposed of. In addition to this, the form
of the entry of May 20 is equivalent to setting aside the judgment
of March 2 and entering it anew as of that date. This the Court had
the right to do during the term and for the very purpose of giving
it effect for a supersedeas."
No reference was made to any distinction between a motion for a
rehearing in a suit in equity and a motion for a new trial in an
action at law. Indeed, section 1012 of the Revised Statutes
provides that appeals "shall be subject to the same rules,
regulations, and restrictions as are or may be prescribed in law in
cases of writs of error," and, if the limitation on taking an
appeal does not begin to run until after the denial of a pending
petition for rehearing in an equity suit, it would seem to follow
that this must be so as to bringing a writ of error after the
overruling of a motion for a new trial.
The subject was much considered by Judge McCrary in
Rutherford v. Penn Mutual Life Insurance Company, 1
McCrary 120, where he held that "a writ of error will operate as a
supersedeas if duly served within sixty days, Sundays excluded,
after a motion for new trial has been overruled," and by Judge
Sabin in
Brown v. Evans, 18 F. 56, where the same
conclusion was reached and it was held that where a motion for a
new trial had been made and entertained, the judgment in the case
did not become final and effectual for purposes of review until the
date of the order of court overruling such motion.
And see
Alexander v. United States, 57 F. 828;
Scott's
Administrator v. Stockton, 72 F. 1;
Andrews v. Thum,
72 F. 290.
"A judgment or decree, to be 'final' within the meaning of that
term as used in the acts of Congress giving this Court jurisdiction
on appeals and writs of error,"
said Chief Justice
Page 170 U. S. 680
Waite in
Bostwick v. Brinkerhoff, 106 U. S.
3,
"must terminate the litigation between the parties on the merits
of the case, so that, if there should be an affirmance here, the
court below would have nothing to do but to execute the judgment or
decree it had already rendered."
And in
McLish v. Roff, 141 U.
S. 661,
141 U. S. 665,
it was observed by Mr. Justice Lamar:
"From the very foundation or our judicial system, the object and
policy of the acts of Congress in relation to appeals and writs of
error (with the single exception of the provision in the act of
1875 in relation to cases of removal, which was repealed by the act
of 1887), have been to save the expense and delays of repeated
appeals in the same suit, and to have the whole case and every
matter in controversy in it decided in a single appeal."
The circuit courts of appeals are governed by the same
principles.
Unquestionably it is the general rule that after the expiration
of the term all final judgments, decrees, or other final orders of
the court thereat rendered and entered of record pass beyond its
control, unless steps be taken during that term, by motion or
otherwise, to set aside, modify, or correct them.
Hickman v.
Fort Scott, 141 U. S. 415. But
this motion for new trial was filed in due course and in apt time
during the term at which the verdict was returned and judgment
rendered, and, this being so, the case came within the
exception.
It is true that a writ of error does not lie from this Court or
the courts of appeals to review an order denying a motion for a new
trial, nor can error be assigned on such an order because the
disposition of the motion is discretionary; but the court below
while such a motion is pending has not lost its jurisdiction over
the case, and, having power to grant the motion, the judgment is
not final for the purpose of taking out the writ. The effect of a
judgment, entered at once on the return of the verdict, in other
respects is not open for consideration. The question before us is
merely whether a judgment is 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 new trial.
We
Page 170 U. S. 681
do not think it is, and are of opinion that the limitation did
not commence to run in this case until the motion for new trial was
overruled.
The judgment of the circuit court of appeals is reversed,
and the cause remanded for further proceedings.
