Opinion · Supreme Court of the United States
Old Nick Williams Co. v. United States
215 U.S. 541
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1910-01-24
- Topic
- general
How later courts describe this case
- nunc pro tunc order granting writ of error as if it had been timely filed was ineffective 9 to extend the time to appeal
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UpLaw has not yet analyzed Old Nick Williams Co. v. United States. The absence of a flag is not a finding that it is good law.
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OLD NICK WILLIAMS CO.v. UNITED STATES,215 U.S. 541(1910)
30 S.Ct. 221
OLD NICK WILLIAMS COMPANYv. UNITED STATES.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.
No. 26.
Argued November 9, 10, 1909.
Decided January 24, 1910.
THIS was an indictment in the District Court of the United
States for the Western District of North Carolina against the Old
Nick Williams Company, a corporation which was authorized to
carry on the business of a rectifier, and which was convicted of
violating the second paragraph of § 3317 of the Revised Statutes
by the verdict of a jury finding it guilty of carrying on the
business of a rectifier with intent to defraud the United States
of the tax on the spirits rectified by it. The verdict was
rendered November 28, 1905, and motions to set aside the verdict
and for new trial and in arrest of judgment were severally made
and overruled, and thereupon judgment was entered on that day
sentencing defendant to pay a fine of $5,000 and be taxed with
the costs. On the same day it was ordered that the defendant have
ninety days to prepare its bill of exceptions, and that the
attorney for the United States have
Page 542
thirty days, after being served with the defendant's bill of
exceptions, to make objections thereto, and that the court would
settle the bill of exceptions upon ten days' notice to the
attorneys of the parties, and that when filed the bill of
exceptions should be deemed as made in ample time.
January 17, 1906, by consent of the parties, the court by its
order further extended the time for preparing and filing
defendant's bill of exceptions to March 15, 1906, and afterwards
extended the time to April 1. On July 27, 1906, the court, over
the objection of the attorney for the United States, made an
order which recited that defendant had filed with the clerk its
bill of exceptions, to which the United States attorney had filed
certain objections and proposed amendments, so that the bill of
exceptions had not been settled and signed by the court within
six months from the date of the entry of the judgment, and the
court, being of opinion that defendant was entitled, under the
circumstances, to have the bill of exceptions settled and a writ
of error and citation issued and servednunc pro tuncas within
the time required by law, directed that the attorneys should
appear before him August 7, 1906, and have the bill of exceptions
settled and signed by the court, and further ordered that when
the bill of exceptions was settled and signed and after a
petition for a writ of error and assignments of error had been
filed by defendant, the writ of error and citation in due form
should be issued and served, all to bear date as of the fifteenth
of April, 1906, that being the date on which the defendant filed
its proposed bill of exceptions with the clerk, and which was
within six months from the entry of the judgment. Thereafter, on
September 12, 1906, defendant, having presented its petition for
the allowance of a writ of error and its assignment of errors,
the court signed an order allowing the writ of error and
directing that the writ of error and citation when issued bear
date April 15, 1906. Thereupon the writ of error was issued on
September 12, 1906, as of April 15. The attorney for the United
States moved to dismiss the writ of error because not sued out
within six months after the entry of
Page 543
the judgment. The statute restricting the time for writs of error
in such cases is § 11 of the act of Congress of March 3, 1891
(26 Stat. 826, 829 c. 517), and reads:
"SEC. 11. 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."
The writ was dismissed for the reasons given in the opinion by
Morris, J., reported in 152 F. 925.
The same rule is applicable to appeals as to writs of error. Section 1012, Revised Statutes. As Mr. Justice Bradley said inCredit Companyv.Arkansas Central Railway,128 U.S. 261:
"An appeal cannot be said to be `taken' any more than a writ of error can be said to be `brought' until it is, in some way, presented to the court which made the decree appealed from, thereby putting an end to its jurisdiction over the cause, and making it its duty to send it to the appellate court."Page 544
There the appeal was allowed by Mr. Justice Miller on the last day on which an appeal could be taken (Revised Statutes, § 1008), but was not presented to the court below nor filed with the clerk until five days after the prescribed time had expired. It was held that the appeal must be dismissed, and Mr. Justice Bradley added:
"The attempt made, in this case, to anticipate the actual time of presenting and filing the appeal, by entering an ordernuncpro tunc, does not help the case. When the time for taking an appeal has expired, it cannot be arrested or called back by a simple order of court. If it could be, the law which limits the time within which an appeal can be taken would be a dead letter."
InFarrarv.Churchill,135 U.S. 609, it was held that a cross appeal in equity, like other appeals, must be entered within the time limited, calculating from the date of the decree, and because in that case petition, order and bond were not filed in the Circuit Court until after the lapse of two years from the entry of the decree the cross appeal was dismissed. It was ruled also that the failure to file an assignment of errors, although required by the act of Congress, and the rule of court, was not jurisdictional and could be waived. Revised Statutes, § 997; Rule 11;School Districtv.Hall,106 U.S. 428.
InConboyv.Bank,203 U.S. 141, it was held that the time within which an appeal may be taken under § 25bof the bankruptcy act and general order in bankruptcy XXXVI runs from the entry of the original judgment or decree, and when it has expired is not revived by a petition for a rehearing, and that where the right of appeal has been lost, appellant cannot reinvest himself with that right by filing such petition, andCredit Companyv.Arkansas Central Railway,128 U.S. 258,261, was cited with approval.
Plaintiff in error contends that the delay in settling the bill of exceptions was not its fault, but was attributable to the judicial engagements of the trial judge, and that until the bill of exceptions was settled its counsel could not intelligentlyPage 545prepare the assignment of errors which should accompany the petition for the writ of error. But the assignment of errors does not require the previous settlement of the bill of exceptions, and can be formulated before that takes place. InWaldronv.Waldron,156 U.S. 361, cited in the opinion of the Court of Appeals, the judgment was entered July 10, 1890, and the writ of error was dated July 15, 1890, but the bill of exceptions was not settled during the term, and, because of subsequent delays, not until February, 1891, yet this court held it to be in time in the circumstances. But the writ of error had already issued and been deposited with the clerk of the trial court, and after that the time for complying with it might by proper authority be enlarged.Mussinav.Cavazos, 6 Wall. 355.
As we have stated, the assignment of errors is not a jurisdictional requirement, and although by the rule errors not assigned would be disregarded, the court might at its option notice a plain error not assigned or specified.
The delay in the present case in taking out the writ of error was not the act of the court, but of plaintiff in error. At all events, plaintiff in error might have brought its writ of error within the time prescribed by statute, and the court had no power to allow it after the time limited had expired.Judgment affirmed.Page 546