Kingman Company v. Western Manufacturing Company/Opinion of the Court
In Mining Co. v. Ripley, 151 U.S. 79, 14 Sup. Ct. 236, it was held that this court had jurisdiction by appeal or writ of error to pass upon the jurisdiction of the circuit courts of appeals in cases involving the question whether their judgments were made final by section 6 of the act of March 3, 1891. 26 Stat. 826, c. 517. The present case was one of the classes of cases in which the judgments of the circuit courts of appeals were made final, and therefore the remedy was properly sought by certiorari.

By section 11 of that act, it is provided 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.'

By section 6 the circuit courts of appeals are empowered to review final decisions of the district and circuit courts, except where cases are carried, under section 5, directly to this court; but by the seventh section, as amended by the act of February 19, 1895 (28 Stat. 666, c. 96), jurisdiction is given to the courts of appeals of appeals from interlocutory orders in injunction proceedings. Kirwan v. Murphy, 170 U.S. 205, 18 Sup. Ct. 592.

This provision is an exception to the general rule, and, while the language of section 11 refers to the entry of the order, judgment, or decree, yet the meaning must be confined to final orders, judgments, or decrees.

The question is, then, whether the judgment of which Kingman & Co. complained became final for the purposes of a writ of error six months before the writ was sued out.

By secto n 726 of the Revised Statutes, the courts of the United States are empowered to grant new trials 'for reasons for which new trials have usually been granted in the courts of law'; and by section 987 provision is made where judgment had been entered on a verdict, or a finding of the court on the facts, for stay of execution for 42 days, on motion for time to file a petition for a new trial, and, if such petition should be filed by leave within that time, execution was further stayed as of course; and, 'if a new trial be granted, the former judgment shall thereby be rendered void.' These sections were brought forward from sections 17 and 18 of the original judiciary act of September 24, 1789, and the latter section is supplementary and additional to the other.

At common law, motions for new trial were made before judgment, but under the statutes of many of the states judgment is entered at once on the return of the verdict, and the motion for new trial made afterwards.

By section 5889 of the Compiled Statutes of Nebraska applications for new trial must be made at the term when the verdict is rendered (except on the ground of newly-discovered evidence), and within three days after verdict, unless unavoidably prevented.

The motion for new trial in this case was filed within three days after the return of the verdict, and seasonably within the rule of the state statute, or the common-law rule, and, it is said, within the rule enforced by the United States courts in that district. No leave to file it was required, and as it was entertained by the court, argued by counsel without objection, and passed upon, it must be presumed that it was regularly and properly made. This being so, the case falls within the rule that, if a motion or a petition for rehearing is made or presented in season and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the motion or petition is disposed of. Until then the judgment or decree does not take final effect for the purposes of the writ of error or appeal. Smelting Co. v. Billings, 150 U.S. 31, 14 Sup. Ct. 4; Voorhees v. Manufacturing Co., 151 U.S. 135, 14 Sup. Ct. 295; Brockett v. Brockett, 2 How. 238, 249; Railway Co. v. Murphy, 111 U.S. 488, 4 Sup. Ct. 497; Memphis v. Brown, 94 U.S. 715; Railroad Co. v. Holmes, 155 U.S. 137, 15 Sup. Ct. 28. In Memphis v. Brown the judgment was in mandamus, and a motion had been made to set it aside, which was denied, and thereupon the judgment was re-entered. The question here arose on a motion to vacate the supersedeas because the writ of error was not seasonably sued out within section 1007, Rev. St., 60 days having elapsed since the judgment was originally entered, and Mr. Chief Justice Waite, delivering the opinion of the court, said: 'Under the ruling in Brockett v. Brockett, 2 How. 241, the motion made during the term to set aside the judgment of March 2d suspended the operation of that judgment, so that it did not take final effect for the purposes of a writ of error until May 20th, when the motion was disposed of. In addition to this, the form of the entry of May 20th is equivalent to setting aside the judgment of March 2d, and entering it anew as of that date. This the court had the right to do during the term and for the very purpose of giving it effect for a supersedeas.' No reference was made to any distinction between a motion for a rehearing in a suit in equity and a motion for a new trial in an action at law. Indeed, section 1012 of the Revised Statutes provides that appeals 'shall be subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error,' and, if the limitation on taking an appeal does not begin to run until after the denial of a pending petition for rehearing in an equity suit, it would seem to follow that this must be so as to bringing a writ of error after the overruling of a motion for a new trial.

The subject was much considered by Judge MC rary in Rutherford v. Insurance Co., 1 McCrary. 120, 1 Fed. 456, where he held that 'a writ of error will operate as a supersedeas if duly served within sixty days, Sundays excluded, after a motion for new trial has been overruled'; and by Judge Sabin in Brown v. Evans, 18 Fed. 56, where the same conclusion was reached, and it was held that, where a motion for a new trial had been made and entertained, the judgment in the case did not become final and effectual for purposes of review until the date of the order of court overruling such motion. And see Alexander v. U.S., 15 U.S. App. 158, 169, 6 C. C. A. 602, and 57 Fed. 828; Scott's Adm'r v. Stockton, 41 U.S. App. 579, 18 C. C. A. 408, and 72 Fed. 1; Andrews v. Thum, 33 U.S. App. 430, 18 C. C. A. 566, and 72 Fed. 290.

'A judgment or decree, to be 'final,' within the meaning of that term as used in the acts of congress giving this court jurisdiction on appeals and writs of error,' said Chief Justice Waite in Bostwick v. Brinkerhoff, 106 U.S. 3, 1 Sup. Ct. 15, 'must terminate the litigation between the parties on the merits of the case, so that, if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree it had already rendered.'

And in McLish v. Roff, 141 U.S. 661, 665, 12 Sup. Ct. 120, it was observed by Mr. Justice Lamar: 'From the very foundation or our judicial system, the object and policy of the acts of congress in relation to appeals and writs of error (with the single exception of the provision in the act of 1875 in relation to cases of removal, which was repealed by the act of 1887), have been to save the expense and delays of repeated appeals in the same suit, and to have the whole case and every matter in controversy in it decided in a single appeal.'

The circuit courts of appeals are governed by the same principles.

Unquestionably it is the general rule that after the expiration of the term all final judgments, decrees, or other final orders of the court thereat rendered and entered of record pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify, or correct them. Hickman v. Fort Scott, 141 U.S. 415, 12 Sup. Ct. 9. But this motion for new trial was filed in due course and in apt time during the term at which the verdict was returned and judgment rendered, and, this being so, the case came within the exception.

It is true that a writ of error does not lie from this court or the courts of appeals to review an order denying a motion for a new trial, nor can error be assigned on such an order because the disposition of the motion is discretionary; but the court below while such a motion is pending has not lost its jurisdiction over the case, and, having power to grant the motion, the judgment is not final for the purpose of taking out the writ. The effect of a judgment, entered at once on the return of the verdict, in other respects is not open for consideration. The question before us is merely whether a judgment is final so that the jurisdiction of the appellate court may be invoked while it is still under the control of the trial court through the pendency of a motion for new trial. We do not think it is, and are of opinion that the limitation did not commence to run in this case until the motion for new trial was overruled.

The judgment of the circuit court of appeals is reversed, and the cause remanded for further proceedings. 

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