A trial court lacks the authority to approve a bill of exceptions once the court term has expired, as consent of the parties cannot confer jurisdiction.
After a trial court term expired, the attorneys for the parties executed a written stipulation to extend the term for the purpose of settling and filing a bill of exceptions. The plaintiff-in-error subsequently proposed a bill of exceptions, which the trial judge signed and settled based on the parties' agreement. The question arises whether a bill of exceptions settled and signed after the expiration of the court term is valid. Because consent of the parties cannot confer jurisdiction upon United States courts, the trial court lacks the power to approve a bill of exceptions once the term has expired, even if the parties have stipulated to an extension.
42 S. Ct. at 332 cited at this page2 citing cases
- Farmers' Union Grain Co. v. Hallet & Carey Co., 22 F.2d 796 (8th Cir. 1927).publishedWe think the better rule, and the one supported by former opinions of this court, requires that bills of exceptions shall be signed before the trial court loses jurisdiction of the cause by expiration of the term or such time thereafter as…
- Farmers' Union Grain Co. v. Hallet & Carey Co., 21 F.2d 42 (8th Cir. 1927).publishedA.) 8 F.(2d) 216 ; Bennett v. Riverland Co., 15 F.(2d) 491 (this court); Denver Live Stock Commission Co. v. Lee & Shay, supra. Quoting from the case of Exporters of Manufacturers’ Products, Inc., v. Butterworth-Judson Co., 258 U. S. 365,…
At page 368 stipulation above quoted, settled and signed the bill .of exceptions annexed, to thé writ of error herein and now in this court. - “ Defendant-iri-error then…2 citing cases
- Moynier v. Welch, 97 F.2d 471 (9th Cir. 1938).publishedIt was said in Exporters v. Butterworth-Judson Co., 258 U.S. 365, 368, 369 , 42 S.Ct. 331, 332 , 66 L.Ed 663, quoting from O’Connell v. United States, 253 U.S. 142, 146 , 40 S.Ct. 444, 445 , 64 L.Ed. 827 , “ ‘ * * * After the term [of cour…
- Walton v. S. Pac. Co., 53 F.2d 63 (9th Cir. 1931).publishedEd. 827 ; Exporters of Manufacturers’ Products, Inc., v. Butter-worth-Judson Co., 258 U. S. 365, 368, 369 , 42 S. Ct. 331, 332 , 66 L.
Other citing cases
- Pepper v. Old Colony Trust Co., 167 N.E. 656 (Mass. 1929).published
- Scopes v. State, 278 S.W. 57 (Tenn. 1925).published
- Farm Mortg. & Loan Co. v. Willett, 285 F. 42 (W.D.N.Y. 1922).published
- Rutherford v. United States, 32 F.2d 387 (W.D. Wash. 1929).published
v.
Butterworth-Judson Company
delivered the opinion of the court.
Asking instruction as provided by § 239, Judicial Code, the Circuit.Court of Appeals f<5? the Second Circuit has sent up the statement and question which follow.
“ This cause came here on a writ of error to a judgment in favor of the Butterworth-Judson Company in an action at law in the District Court for the Southern District of New York. Judgment resulted from, the verdict of a jury and thereupon plaintiff-in-error took a writ.
“ The 'stated terms of the trial court as prescribed by Act of .Congress begin each month on the first Tuesday thereof; but a general rule of that court provides as follows: ‘For the purpose of taking any action which must be taken within the term of the court at which final judgment or decree is entered, each term of court is extended for ninety days from, the date of entry of the final judgment or decree.’ ...
“In respeGt to .this case the ninety day period above provided for, and therefore the Term at which the final judgment in question was entered expired bn the 24th of February, 1920.
“ On March 1, 1920, a written stipulation was executed between the attorneys for the parties hereto in the words following: ‘ It is hereby stipulated and agreed by and between the parties hereto that the November Term of the United States District Court for the Southern District of New York be extended to April 6, 1920, for the purpose of settling and filing the bill of exceptions herein.’
“ On or before the 6th of April, 1920, but long after the 24th pf February, 1920, the plaintiff-in-error’proposed a bill of exceptions..’ Thereupon the trial Judge over the objection of defendant-iri-error and on the' faith of the[*368] stipulation above quoted, settled and signed the bill .of exceptions annexed, to thé writ of error herein and now in this court.
- “ Defendant-iri-error then moved in this court for an order striking from the record the bill of exceptions so-settled as above set forth, on the ground that the same had been settled, signed and made a part, of the recordheréin in contravention of law, in "that the'term had expired.
“ Upon consideration of this motion a question of law arises concerning which this court desires the instruction: of the Supreme Court in order properly 'to decide the cause. • ■■ i ■
“ Question Certified. Is the bill of exceptions so as above set forth settled, signed and certified to this court in contravention of law, in- that the term had expired before the same was offered for. settlement? ”
In the recent case, of O’Connell v. United States, 253 U. S. 142, 146, we reaffirmed the doctrine announced in Michigan Insurance Bank v. Eldred, 143 U. S. 293, 298—
“ By the uniform course of decision, no exceptions to . rulings at a trial can be considered by this .court, unless they -were taken- at- the trial, and were also embodied in a formal bill of exceptions presented to the judge at the same term, or within a further time- allowed by order, entered at that term, or by standing rule of court, or by consent of parties; and, save under very extraordinary -circumstances, they must be allowed by the judge and filed with the clerk during the same term. After the term has expired, without the court’s control over the case being reserved by standing rule or. special order, and especially after a writ of'-error has-been entered-■in. this court, all authority of the court-below-to allow a bill -of exceptions' then first presented, or to alter or amend-a. bill of exceptions already'’allowed and filed, is at an end.”
[*369] And applying this rule we held the bill of exceptions, signed by the trial judge after expiration of the time allowed by the rule of court, was no part of the record.
In the present' cause .the term as extended had expired before any action concerning the bill of exceptions was taken by either court or counsel. In su’ch circumstances the court had no power to approve it Unless this could be conferred by mere Consent of counsel. This they could not do.
Consent of parties can not give- jurisdiction to courts of the United States. Railway Co. v. Ramsey, 22 Wall. 322, 327. The policy of the law requires that litigation be terminated within a reasonable time and not protracted at the mere option of the parties. See United States v. Mayer, 235 U. S. 55, 70. We think the better rule and the one supported by former opinions of this court requires that bills-of, exceptions shall-be signed before the trial court loses’ jurisdiction of the cause by eypir&tifcm of the term or such time thereafter as may have been . duly prescribed. The certified -question is accordingly answered in the affirmative..