UNITED STATES
v.
TRAIN
and others. July 26. 1882.)
(Circuit Uourt, 1.
n. Massachusetts.
PRACTICE AND PnOCEDURE-OECTION
914, REV. ST:, 6ection 914 of the Revised Statutes, providing that the practice and procedure in the United States courts shall conform as near as may be to the practice'and procedure existing at the time in like causes in the courts of record of the state within which such courts are held, does not extend to the means of enforcing or revising a decision once made.
2.
SAME-PROCEEDINGS AFTER TRIAL.
The object of this section was to assimilate the form and manner of presenting claims and defences in the preparation for and trial of suits to those prestate courts, and does not include statutes requiring instructions vailing in to bem writing, or permitting instructions and certain papers to be taken by the jury when they retire, or requiring the jury to be directed to find specially upon pitrticu,ar questions ofIfact, nor to the,manner or time of taking a case from one federal court to another by: writ ofer;ror, bill of exceptions, or appeal. I' ,
P. CummingB and Geo. P. Sanger, fat the United States-. 'J. O. Teele, for defendant. :J Before GRAY and LOWELL, JJ. GRA1', ,Justice. This is' a motion to dismiss a writ of error sued out of the United States to reverse a judgment of the district court in favor of the defendants in error in an action at law brought them as sureties on the bond of a paymaster in·the naYy. The case was tried.in the district court at, October term, 1880. The of January, verdict for the defendants was returned on ,the 1881, the ended on the fourteenth of March, 1881, and the case was continued to the next term, at which, onj the ninth of April,a .billof: exceptions was :filed by the United States, which the parties, hy;stipulatrondn writing"agreedshb.uldhave the same force and effect as if it had been filed on the last day of the term at which the verdict judge was rendered, and which was aferwards allowed by the 'the jury and ordered to be filed as of the date of the verdict left the bar. The ground of the motion to dismiss is that the bill of exceptions was not filed within three days after the verdict, or within such further time, not exceeding five days, unless by consent of the adverse party, as the judge might allow, in accordance with the rule prescribed by the statutes of Massachusetts in the case of exceptions to the rule ings of a judge of the supreme judicial court, or of the superior court. Mass. Gen. St. c. 115, § 7; Mass. Pub. St. c. 153, § 8; Cum. v. Greenlaw, 119 Mass. 208.
UNITED
858
The defendants rely upon section 914 of the Revised Statuws J re-enacting the fifth section of the act of congress of Junel, 1872, d. 255, and providing. that "the practice, forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, an.d fQrms and .111odes of proceeding existing at the time in like causes in the courts of record ofth.e state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding." But the context of the act,·and the of the supreme court, show that this provision is not to be understood in the btoadel'ltaense, nor as extending to the mea.ns of enforcing or revising a; deei!3ion onlJe made.!, : '!' That this seotion,does not extend. to proceedings after'judgmeld appears by the very next section, making special and peculiar pro'VIsions as to execution, <>r other ptocess agaibst'a defendant's property, and borrowing from the laws of the remedies only which already exist, or which may be adopted by rule the federal courts. The objeot of the former section was to assimilate the form and manner in which the patties sllouldpresent theitclaimsand dElfences, in the preparation for and trial of suits in the federal courts, to those prevailing in the courts of the state. It does not include state statutes requiring instruotions to the jury to be reduced to writing; or permitting such instructions and cerlain paperstead 'ine'Vidence to to be be taken by the jury when they retire; or requiring the .speCially upon pardirected, i,f they return a general verdict, ticular questioIl 8 of fact inyolved in the issues. Nuda, v 13urrows, 91 U.·S; 4:M; Sawin v.KennY" 93 U.S.289; L.R.'R. v. Horst, ld. 291; West v.Sridth,' loiti. S. 2'63. 'tt 'does \iot appTy to motions for a new trial, nor, whatever rule may be.preiltlribed by the statutes of the state upon that subject, does it control or affect the power of the federal courts under the judiciary act of September 24, 1879, c. 20, § 17, and under section 726 of the Revised Statutes, to grant or refuse a new trial at their discretion. Indianapolis et St. L. R. R. v. Horst, above cited; Newcomb v. Wood, 97 U. S. 581. The reasons are yet stronger against construing it as subjecting to the provisions of state statutes the manner or the time of taking a case from one federal court to another by writ of error, bill of exceptions, or appeal. These matters are regulated exclusively by the acts of congress, or, when those are silent, by rules derived from thE: ' o
of
854
FEDlilRALRlllPORT.ER. "
common law, from ancient English statutes, Or from the practice of the court& of;'the United States. Congress has provided that a writ of error froni th'is court to the district court shall be sued out within one year from the judgment below. Rev. St.§ 635. And the only regulation that it has made as to bills' of exceptions is that contained the fourth section: in section 953 of the·Revised Statutes, of the act of 1872, and providing that they shall be sufficiently authenti.cated by the signatare of the"presiding judge, without any seal. The bill of exceptioi1smight there-fore be, allowed/by the judge at any tiItle during the term at which the was rendered. Muller v. EhlIJrs,91 U. S. 249; Hunnicutt v. PerJton, 102 U. S; 333. And the parties having agreed that it should be treated as if filed on the last day of that term, the motion to dismiss must be denied. See Perru v. Meehan. Mut. Ins. {)o. lQfED. REP. 479; U. S. v. Griswold, Id. 810; Castro v. De U1'iarte, 12 FED. REP. 250, and note, 259. 'i (" ·
.DAVIES "and
others, Adm'Jis,t1.
LATHROP,
Receiver, etc. 1882,)
{Oircuit Oourt. S.D. N6'I/) York. July BILL O'!l ExCEPTIONS.
Requisitefqrreview of point,s brought up.
Trial. WlLLACE, q. ;r.The plaintiffs'motion for a new trial is dismissed. The otlierbranch of the motion will not be considered until a biU of exceptions is prepared and preaented for settlement. >, '"
On Motion for
See S. C. ante, 853.