Veritas Oil Corp. v. McLain

Fifth Circuit

Veritas Oil Corp. v. McLain

4 F.2d 389, 1925 U.S. App. LEXIS 2995

CourtCourt of Appeals for the Fifth Circuit

DecidedFebruary 5, 1925

DocketNo. 4039

StatusPublished

Cited by2 cases

This text of 4 F.2d 389 (Veritas Oil Corp. v. McLain) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Veritas Oil Corp. v. McLain, 4 F.2d 389, 1925 U.S. App. LEXIS 2995 (5th Cir. 1925).

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Opinion

DAWKINS, District Judge.

At the threshold of this case we are met with a motion to dismiss upon the ground that the writ of error was not “sued out * * * within six months after the entry of * * * judgment.” The record discloses that the judgment below was entered on June 6 and the motion for new trial overruled on June 10, 1922. While the supersedeas bond bears the file mark of December 4, it is shown that both it, the petition for writ of error, and order thereon by the trial court wore not actually lodged with and filed by the clerk below until the 14th day of December, 1922, more than six months after the entry of the judgment. Citation and writ of error were signed on December 18, and these, together with the approved bond, were filed on December 23 of that year. It’follows that we have no jurisdiction, and the case must be dismissed. U. S. Compiled Statutes, § 1647; Brooks v. Norris, 11 How. 207, 13 L. Ed. 665; City of Waxahachie v. Color, 92 F. 284, 34 C. C. A. 349 (C. C. A. 5th C.); Rutan v. Johnson et al., 130 F. 109, 64 C. C. A. 443; Clark v. Doorr, 143 F. 960, 75 C. C. A. 146 (C. C. A. 5th C.); Kentucky Coal, etc., v. Howes, 153 F. 163, 82 C. C. A. 337; Siegelschiffer v. Penn. Mutual Life Insurance Co., 248 F. 226, 160 C. C. A. 304.

The time can neither be extended by the court nor by consent of the parties. Credit Co. v. Arkansas Railway Co., 128 U. S. 258, 9 S. Ct, 107, 32 L. Ed. 448; Judson v. Courier Co. (D. C.) 25 F. 705; Camden Iron Works v. City of Cincinnati, 241 F. 846, 151 C. C. A. 548; Stevens v. Clark, 62 F. 321, 10 C. C. A. 379.

For the reasons assigned, the appeal is dismissed.

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DAWKINS, District Judge.

At the threshold of this case we are met with a motion to dismiss upon the ground that the writ of error was not “sued out * * * within six months after the entry of * * * judgment.” The record discloses that the judgment below was entered on June 6 and the motion for new trial overruled on June 10, 1922. While the supersedeas bond bears the file mark of December 4, it is shown that both it, the petition for writ of error, and order thereon by the trial court wore not actually lodged with and filed by the clerk below until the 14th day of December, 1922, more than six months after the entry of the judgment. Citation and writ of error were signed on December 18, and these, together with the approved bond, were filed on December 23 of that year. It’follows that we have no jurisdiction, and the case must be dismissed. U. S. Compiled Statutes, § 1647; Brooks v. Norris, 11 How. 207, 13 L. Ed. 665; City of Waxahachie v. Color, 92 F. 284, 34 C. C. A. 349 (C. C. A. 5th C.); Rutan v. Johnson et al., 130 F. 109, 64 C. C. A. 443; Clark v. Doorr, 143 F. 960, 75 C. C. A. 146 (C. C. A. 5th C.); Kentucky Coal, etc., v. Howes, 153 F. 163, 82 C. C. A. 337; Siegelschiffer v. Penn. Mutual Life Insurance Co., 248 F. 226, 160 C. C. A. 304.

The time can neither be extended by the court nor by consent of the parties. Credit Co. v. Arkansas Railway Co., 128 U. S. 258, 9 S. Ct, 107, 32 L. Ed. 448; Judson v. Courier Co. (D. C.) 25 F. 705; Camden Iron Works v. City of Cincinnati, 241 F. 846, 151 C. C. A. 548; Stevens v. Clark, 62 F. 321, 10 C. C. A. 379.

For the reasons assigned, the appeal is dismissed.

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4 F.2d 389, 1925 U.S. App. LEXIS 2995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/veritas-oil-corp-v-mclain-ca5-1925.

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