92(1
FEDERAL REEORTER,
vol. 54.
amply illustrate and fully settle the doctrine and practice here . Owings v. Kincannon, 7 Pet. 399; Todd v. Daniel, 16 Pet. 521; Williams v. Bank, 11 Wheat. 414; Mussina v. Cavazos, 6 Wall. 355; MastersoDv. Herndon, 10 Wall. 416; Feibelman v. Packard, .. S. 14, 1 Sup. Ct. Rep. 138; Downing v. McCartney, appendix to 131 U. S. 98; Masonv. U. S., 136 U. S. 581,10 Sup. Ct. Rep. 1062; arid Rardee v. Wilson, (decided at the October. term, 1892,) 146 U. S. 179, .,13 Sup. Ct. Rep. 39,-in which all of the foregoing cases are cited and discussed, and the opinion concludes: "The state .of facts shown by the record brings the present case within the scope ot the cases. above' cited. and it follows that the appeal must be dismissed."
On the authority of these cases, this writ of error must be, and is, ,disIn1!3sed. , WARNER v. TEXAS & P. RY. CO. (Circuit Court of Appeals. Firth Circuit. January 30. 1893.) No. 96.
L
WRI:t'S Oll' ERROR-ALLOWANCE-INDORSEMENT OF TIlE PETiTION AND lIYJUDGE·
WRIT
. An indorsement by the judge of the allowance of Ii writ of error lIpon the petition therefor is sufl:lclent although the judge does not indorse his allowance upon the writ itself. but the better practice is to follow the usual course of making the indorsement upon both the petition and the writ.
I.
SAME-,-DuTIES OF CLERK.
It is no part of the duty of a clerk of a federal court to procure the allOWance of writs of error. and the approval of bonds for appeals and writs of error, and if parties intrust this matter to his voluntary action they have no right to complain of delay therein.
8.
SAME.
Whe1"e a clerk prepares a writ of error, bond, and citation. and sends them to the judge, who signs them without inserting the date of his signature, the clerk has no authority on the return of the papers to erase the dates originally written therein, and insert the date of the actual signing; nor he any authority to change the file marks on papers filed by him; but it would not be improper to add a memorandum, signed by him officially, of any facts which, as to him. might be or become material.
4. CIRctrITCOURT OF ApPEALS-ALLOWANCE OF ApPEALS-POLICY OF THE LAW.
The pollcy of the la w creating the circuit court of appeals shows marketl liberality in allowIng appeals In ill cases, and. bn the other hand, requir.:ls a speedy prosecution thereof.
In Errol' to the Circuit Court of the United States for the Ea,tern District ot Texas. Action by Charles Warner against the Texas & Pacific Railway Company ,to recover damages for breach of contract. The court directed. a .verdict for defendant, and entered judgment thereon. Plaintiff brings error. Heard on motion to dismiss the writ of error. Denied. H. Chilton, for plaintiff in error. Wm.Wirt Howe and T. J. Freeman, for defendant· in error. Before PARDEE and McCORMICK, Circuit Judges, and LOCKE. District Judge.
WARNER
v.
TEXAS & P. RY. CO.
921
McCOR:MICK, Circuit Judge. The judgment to review winch this writ of error was sued out was rendered on 11th of May, 1892. On August 29, 1892, the petition for the writ of error was presented to the judge of the circuit court who had presided in said court when said judgment was rendered, and was allowed by him in these terms: "The above petition for writ of error is hereby allowed. August 29, 1892. David E. Bryant, District Judge Eastern District of Texas i" and said petition, with said allowance written on it, and so signed by the judge, was filed in the said circuit court on August 31, 1892, and on the same day a writ of error in the prescribed form, duly signed and tested by the clerk of said circuit court, and sealed, but wanting the signature of the judge to the customary printed memorandum "allowed by," as shown in the form of such writs in common use, was filed by the clerk in said circuit court. On November 9, 1892, counsel for plaintiff in error, on the street in the town of Tyler, Tex., where said circuit court rendering said judgment had held its session, and where its records are kept, and where a deputy clerk of said court resides, handed said deputy clerk the bond for writ of error shown in the record, and requested said deputy clerk to make inquiry as to the solvency of the sureties, and to forward the bond and the writ of error and the citation in error to the judge, to be respectively approved, allowed, and signed by him. Some delay was incurred in making the requested inquiry, and when the papers were sent to the judge he signed the memorandum of the allowance of the writ and the approval of the bond without showing the date of the allowance of the writ or of the approval of the bond, and returned them to the said clerk by mail, accompanied by a letter dated November 16, 1892, which the clerk received 17th of November, 1892, and thereupon said clerk erased the date originally written in said writ, and the date originally indorsed on it, showing that it was issued and filed August 31, 1892, and inserted November 16, 1892, as the date of issuing said writ, and November 17, 1892, as the date of filing. . The policy of the law in the creation of this court shows marked liberality in allowing appeals from trial courts in all cases, and, on the other hand, requires a speedy prosecution of all appeals or writs of error. It is no part of the clerk's duty as clerk to procure the allowance of writs of error, and the approval of bonds for appeals or writs of error. This is the office of parties, or of their attorneys and solicitors. It is also clearly not the duty of the clerk, or his privilege, to change the writ of error, after it is allowed, by erasing and inserting a date, or by adding a date, any more than it is to make any other alteration in such papers. Nor may he, without the order of the proper court or judge, erase his own file mark on a paper which parties have procured to be filed. He may, and doubtless should, in some cases, add a new file mark or memorandum, signed by him officially, to show such facts in connection with his custody of the files as appears to him might be or become material. In the present case he might, without overstepping his duty, have noted on the writ what actually had occurred within his knowledge as to the signature of the judge on the writ of
,922
FEDERAL REPORTER,
say that The parties have a rigbt to appeal or ,sue put writs qf: error from aU final and decrees,if that right is invoked intin}e, and in the prescribed fol')ll. A part of that prescribed form is . for of the judges of the trial court to allow the appeal or writ of error, ,and the appej\l or writ of error is not "taken or sued out" until thataUpwance is obt$ed, (Barrel v. Transportation Co.,3 Wall. 424; Brooksv. Norris, 11 Row. 204; Scarborough v. Pargoud, 108 U. S. 567, 2. Sup. Ct. Rep. and parties and their attorneys sometimes incur serious hazard of losing their right of appeal by omitting tp take the proper steps in due time, so that misconnections liable. to occur may not prevent their obtaining the necessary al10waI;lce from a judge whose other duties take h4n to different and distant in his district. The form of writ of error for taking a casetrom the' circuit court to the supreme court which was prescribed years ago under an act of congress, and which has been in use since, has on it a memorandum of allowance to be signed by the juqge. Section 9; Act 1792; Mussina v. Cavazos, 6 Wall. 357. In actual practice the petition for. writs of error is also indorsed "allowed" by the judge. The office of each is to show the fact that the writ is allowed, and :it does not appear to us to be jurisdictional that the allowance should be indorsed on both, or on one rather than the other. It is well to proceed in order, and in a matter of general usage so long established parties could not complain if some strictneasshould be exercised in enforcing compliance with prescribed fonns. In this case the plaintiff in error did not use reasonable diligence to get his bond approved in time and to obtain the customafY indorsement on the writ of error. He relied on the clerk to do for him what the clerk was under no official obligation to do. He complains with no very good grace of the manner in which the clerk perf{)rmed a purely voluntary service for his accommodation and at his request. As, however, our view of the law does not require us to 8UStain the motion to dismiss the writ of error for the ilTegularities suggested by it, and no apparent injury has been done the defendant in error, it is ordered that the motion be refused. ,Wi' have done it would not have peen improper.
l!l'l'or. We do not
it was bis duty to do
WARNER v. TEXAS & P. RY. 00. (OI.rcutt Oourt ot Appeals, Fifth Oircult. No.96. 1. STATUTE, OF FRAUDS A YEAR.' VERBAL AGREEMENT NOT TO BE PERFORMED WITHIN
March 13, 1893.)
a.
Under the Texas statute ot frauds, (Rev. St. art. 2464,) a verbal agreement which, bya fair and reasonable interpretation, Il.II.d in vlew of all the clrcul;Ilstancesexlstlng at time, does not admit of performance, according to its ianguage and intention, within a ye.v trom the time of its is void. '
A verbal agrp.ement, whereby a railroad company undertakes to lay a awltch for the use of a sawmill owner, and to maintaIn the same as