Opinion · Court of Appeals for the Fifth Circuit

United States v. Seale

United States v. Seale, 45 F.2d 394 (5th Cir. 1930)

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1930-12-15
Topic
general

BRYAN, Circuit Judge. This appeal is based on assignments of error which complain of rulings on the evidence. No error is assigned on the record proper. Appellee has filed a motion to strike the bill of exceptions on the grounds that it was not presented during the term at which judgment was entered, and that no order was made during that term extending the time for presentation and settlement of a bill of exceptions. The grounds of the motion are supported by the record; but, after the expiration of the term during which the judgment was entered, the district judge signed a nunc pro tunc order purporting to extend the time within which to present a bill of exceptions, and such bill is the one that we are asked to consider.

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UNITED STATES v. SEALE,45 F.2d 394(5th Cir. 1930)
UNITED STATES v. SEALE.
No. 5973.
Circuit Court of Appeals, Fifth Circuit.
December 15, 1930.
Appeal from the District Court of the United States for the Northern District of Texas; William H. Atwell, Judge.

Action by Ida Carrie Seale against the United States of America. Judgment for plaintiff, and defendant appeals. On plaintiff's motion to dismiss appeal.

Motion granted, and judgment affirmed.
Norman A. Dodge, U.S. Atty., and A.M. Mood, Asst. U.S. Atty., both of Fort Worth, Tex., and Eric Eades, Regional Atty., U.S. Veterans' Bureau, of Dallas, Tex. (William Wolff Smith, Gen. Counsel, U.S. Veterans' Bureau, and Bayless L. Guffy, Atty., U.S. Veterans' Bureau, both of Washington, D.C., on the brief), for the United States.

Y.D. Mathes, of Houston, Tex. (Baker, Botts, Parker Garwood, of Houston, Tex., on the brief), for appellee.
Before BRYAN and FOSTER, Circuit Judges, and HUTCHESON, District Judge.
BRYAN, Circuit Judge.
This appeal is based on assignments of error which complain of rulings on the evidence. No error is assigned on the record proper. Appellee has filed a motion to strike the bill of exceptions on the grounds that it was not presented during the term at which judgment was entered, and that no order was made during that term extending the time for presentation and settlement of a bill of exceptions. The grounds of the motion are supported by the record; but, after the expiration of the term during which the judgment was entered, the district judge signed a nune pro tunc order purporting to extend the time within which to present a bill of exceptions, and such bill is the one that we are asked to consider.

Appellee's motion was well taken, as the power of the court in the absence of an extension order ended with the trial term. United States v. Jones,149 U.S. 262,13 S. Ct. 840,37 L. Ed. 726; Jennings v. Philadelphia, etc., Ry. Co.,218 U.S. 255,31 S. Ct. 1,54 L. Ed. 1031. And such power could not be restored by a nune pro tunc order. Michigan Insurance Bank v. Eldred,143 U.S. 293,12 S. Ct. 450, 36 S. Ct. 162; Exporters v. Butterworth-Judson Co.,258 U.S. 365,42 S. Ct. 331,66 L. Ed. 663. Accordingly, appellee's motion to strike the bill of exceptions is granted; and, there being no question for review presented by the record proper, the judgment is affirmed.Page 458