Joerns v. Irvin

114 F.2d 458, 72 App. D.C. 170, 1940 U.S. App. LEXIS 3145

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 6, 1940
• Docket: No. 7269
• Status: Published

Opinions

PER CURIAM.

This action was begun in the District Court in 1936. There was a verdict and judgment for the plaintiff in 1938, and an appeal was taken to this court. Subsequently counsel for appellee moved to strike the bill of exceptions, which had been submitted late and signed and settled, nunc pro tunc, after the time allowed by the rules. After due consideration by the whole court,¹ the motion was granted on the authority of Cannon v. Tinkham, 69 App.D.C. 98, 99 F.2d 133, and cases cited there. Motions by counsel for appellant to reconsider were thereafter denied, and when the case was reached for argument at our February, 1940, term, counsel frankly admitted that in the then state of the record there was nothing for us to review, but again asked us to reconsider our former action in striking the bill. In deference to-our invariable desire to do whatever we can within the limits of our judicial power to preserve rather than deny a review, we have given consideration to counsel’s verbal motion as fully as though it were properly before us, and have again reached the conclusion that under the rules in operation at the time in question we are wholly without power to reverse or revise our former action.²

The suggestion that because the power to strike the bill from the files is discretionary — in view of the language of local Rule 46 — the trial court had discretion to sign the bill and make it a part of the record on appeal, is in our opinion without foundation. ³

It is true that the rule contains the word — may—with reference to striking the bill from the files, but it also contains the word — shall—as fixing the time when the bill must be submitted for settlement, and unless it be settled and signed within the time allowed, it is, as we have said time and again, without effect. That is the limit of the authority of the District Court, ⁴ and was likewise the limit of our own authority, at the time of the trial below. A bill which is not struck remains in the files, but it does not thereby become part of the record on appeal. The effect of Law Rule 46(4), in our opinion, is not different from what it would be if its final clause read — otherwise such bill or statement shall not be signed by the trial judge or become part of the record on appeal, and may be stricken from the files of the trial court upon motion of appellee or upon the court’s own motion.

Judgment affirmed.

1 Judge Rutledge was not then a member of the court.

2 Exporters v. Butterworth Judson Co., 258 U.S. 365, 42 S.Ct. 331, 66 L.Ed. 663; Harris v. United States, 4 Cir., 72 F.2d 982; Harris v. United States, 4 Cir., 70 F.2d 897; Baltimore & Ohio R. Co. v. Baker, 4 Cir., 58 F.2d 627; Witte v. Franklin F. Ins. Co., 8 Cir., 46 F.2d 894; United States v. Seale, 5 Cir., 45 F.2d 394; United States v. Todar, 7 Cir., 41 F.2d 146; In re Bills of Exceptions, 6 Cir., 37 F.2d 849; Shallas v. United States, 9 Cir., 37 F.2d 692; Great Northern Life Ins. Co. v. Dixon, 8 Cir., 22 F.2d 655; United States v. Konstovich, 4 Cir., 17 F.2d 84; Maryland Cas. Co. v. Citizens’ Nat. Bank of Los Angeles, 9 Cir., 8 F.2d 216; Ritz-Carlton Restaurant & Hotel Co. v. Gillespie, 3 Cir., 1 F.2d 921.

3 Law Rule 46 (4) of tlie District Court: Bills of exception and statements of evidence shall be submitted to the court for settlement or approval within forty-five days from the date of the filing thereof by the party tendering the same; otherwise such bill or statement may be stricken from the files upon motion of the ap-pellee or upon the court’s own motion.

4 Ray v. United States, 301 U.S. 158, 162, 67 S.Ct. 700, 81 L.Ed. 976; Sanford v. United States, 69 App.D.C. 44, 98 F.2d 325; Young v. United States, 10 Cir., 88 F.2d 305; Hightower v. United States, 9 Cir., 88 F.2d 302; Miller v. United States, 9 Cir., 88 F.2d 102; Cusamano v. United States, 8 Cir., 85 F.2d 132; Wolpa v. United States, 8 Cir., 84 F.2d 829; Gallagher v. United States, 8 Cir., 82 F.2d 721; United States v. Adamowicz, 2 Cir., 82 F.2d 288; Yep v. United States, 10 Cir., 81 F.2d 637; White v. United States, 4 Cir., 80 F.2d 515, 516.