Petition for Writ of Certiorari — Ohl & Co. v. Smith Iron Works

F ILE COPY ji in

CHARLCS LUM OROPLEY

ChERK

Supreme Court of the United States.

October Term, 1932.

No. 228

. George A. Ohl & Company,

Petitioner,

The A. L. Smith Iron Works,

Respondent.

No. 229

Same v. Same.

Petition for Writs of Certiorari to the United States

Circuit Court of Appeals for the First Circuit

and Brief in Support Thereof.

FRIEDMAN, ATHERTON, KING & TURNER,

_ LEE M. FRIEDMAN,

* LOUIS B. KING,

Attorneys for Petitioner.

ADDIGON ©. GETOHELL & SON, LAW PRINTERS, BOSTON,

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Re re

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SPANO Se ANNE OY FRY AN PD ELEY SOAS APOLLON RS

INDEX.

Page

Petition for writs of certiorari 1

Certificate of James S. Allen, clerk 8

Brief in support of petition for writs of certiorari 13

A. Statement of case, questions raised and errors

assigned 13

B. There was merit in the bills of exceptions war-

ranting judicial review 14

C. Argument 16

I. The present decision is in conflict with the

practice established by another Federal Cir-

cuit Court of Appeals, and introduces uncer-

tainty into Federal procedure and practice 16

II. Liberalized Federal practice does away

with such technicalities of procedure as were

here applied 18

III. The mistake was amendable 22

IV. ‘‘ Judgment term’’ 28

V. Appeal does not prevent relief 32

VI. A reactionary and unworthy decision 32

AUTHORITIES CITED IN BRIEF.

Barber Asphalt Co. v. Standard Co., 275 U.S. 372

14, 21, 32, 33

Bedford v. J. Henry Miller, Inc., 212 Fed. 368 23

Bills of Exceptions, Re, 37 F. (2d) 849 30, 31

Blitz v. Brown, 7 Wall. 693 26

Brown v. United States, 196 Fed. 351 25

Bryan v. Ker, 222 U.S. 107 24

Chateaugay Ore & Iron Co., Petitioner, 128 U.S. 544 30

Clarksburg Trust Co. v. Commercial Casualty Ins.

Co., 40 F. (2d) 626 21

Cotter v. Alabama, G. & S. R. Co., 61 Fed. 747 24

Dalton v. Gunnison, 165 Fed. 873 30

Davis v. Patrick, 122 U.S. 138 30

Dredge v. Forsyth, 2 Black, 563 29

Exporters v. Butterworth-Judson Co., 258 U.S. 365 29, 31

Fairbanks v. Beard, 247 Mass. 8 21

Federal Life Insurance Co., Re, 248 Fed. 908 31

Franklin County v. Furry, 144 Fed. 663 31

Hume v. Bowie, 148 U.S. 245 29

Hunnicutt v. Peyton, 102 U.S. 333 30

Idaho & Oregon Land Co. v. Bradbury, 132 U.S. 512 26

en tt ne at

ii INDEX

Jones v. Grover & Baker Sewing Machine Co., 131 U.S.

Appx. cl. 29

Koewing v. Wilder, 126 Fed. 472 31

Krauss Brothers Lumber Co. v. Mellon, 276 U.S. 386 20

MeDonald v. Nebraska, 101 Fed. 171 19, 24

Mark v. Stuart Howland Co., 226 Mass. 35 15

Matheson’s Adm’rs v. Grant’s Adm’r, 2 How. 263 23

Michigan Ins. Bank v. Eldred, 143 U.S. 293 — 25, 27, 29, 30

Miller v. Texas, 153 U.S. 535 24

Muller v. Ehlers, 91 U.S. 249 29

Mussina v. Cavazos, 6 Wall. 355 25

Norton v. Larney, 26 U.S. 511 23, 24, 32

Origet v. United States, 125 U.S. 240 25, 26

Pittsburgh Gas & Coke Co. v. Goff-Kirby Coal Co.,

151 Fed. 466 30

Plymouth Cordage Co., In re, 135 Fed. 1000 25

Pomeroy’s Lessee v. Bank of Indiana, 1 Wall. 592 24

Roberts v. Bennett, 135 Fed. 748 30

Scaife v. Western North Carolina Land Co., 87 Fed.

308 31

Schmid v. Standard Steel Car Co., 202 Fed. 1023 31

Southwest Metals Co. v. Gomez, 4 F. (2d) 215 31

Steen v. First National Bank, 298 Fed. 36 18

Taylor v. United States, 52 Sup. Ct. Rep. 466 30

Taylor Co. v. Anderson, 275 U.S. 431 23

Texas & Pacific Ry. Co. v. Kirk, 111 U.S. 486 24

United States v. Breitling, 20 How. 252 29

United States v. Turner, 50 Fed. 734 24

United States (Ex Rel. Kinney) v. U.S. Fidelity Co.,

222 U.S. 283 28

Waldron v. Waldron, 156 U.S. 361 30

Walton v. United States, 9 Wheat. 651 29

Western Dredging & Imp. Co. v. Heldmaier, 116 Fed.

179 29, 31

Wight, In re, 134 U.S. 136 25

Act March 3, 1915, e. 90 19

Sales Act of Massachusetts, General Laws, c. 106,

sec. 58 (1a, b (2)) 15

St. Feb. 26, 1919, ec. 48 19

U.S. Code, tit. 28, see. 391 14, 19

U.S. Code, tit. 28, see. 397 18

U.S. Code, tit. 28, see. 398 18

U.S. Code, tit. 28, see. 399 19

U.S. Code, tit. 28, see. 777 14, 22

Be

Supreme Court of the United States.

Ocroser Term, 1932.

No.

GEORGE A. OHL & COMPANY, perrtioner,

v.

THE A. L. SMITH TRON WORKS, responpenr.

No.

SAME v. SAME.

Petition for Writs of Certiorari to the United States

Circuit Court of Appeals for the First Circuit.

To the Honorable the Chief Justice and Associate Justices

of the Supreme Court of the United States:

Your petitioner, George A. Ohl & Company, respectfully

presents to this Court this its petition in each of the above

cases for a writ of certiorari in each ease addressed to the

United States Circuit Court of Appeals for the First Cir-

cuit, commanding such Court and the clerk thereof to certify

to this Court the record and proceedings of these cases in

said Court, in each whereof your petitioner, a corporation

of the State of New Jersey, was appellant and your re-

spondent, The A. L. Smith Iron Works, a corporation of the

Commonwealth of Massachusetts, was appellee, together

with the opinion therein of said Cireuit Court of Appeals for

the review and determination of said causes by this Court.

2

These are two cross-actions tried together (R. 4), included

in one record on appeal (R. I to IIT),* and decided by

said Circuit Court in one opinion (R. 264).

The original controversy involved breach of a contract of

conditional sale of a power press and accessories (R. 11,

Ex. A) sold to the respondent who, after it had made pay-

ments aggregating $4963 (R. 215), claimed a breach of

warranty (R. 32, Ex. EE). At the time of the trial (April

and May, 1929, R. 4), three years after the sale (March,

1926, R. 11, Ex. A; R. 8, Specif. 1), the machine was still in

use at the respondent’s factory (R. 82, line 10). The jury

reached the absurd verdicts that, although the respondent

had accepted and had used the machine for years, there was

a breach of warranty, and that in the petitioner’s suit there

could be no recovery of the purchase price balance (R. 5),

and in the respondent’s suit that the respondent should get

back the $4963 he had already paid, plus $2500 damages (R.

234); so the verdicts resulted in the respondent retaining

the petitioner’s property without paying for it, and being

awarded damages because the machine was not worth the

contract price.

A very careful and exhaustive bill of exceptionst was

prepared and later redrawn as a substitute bill, and filed in

court with the asseut of the defendant endorsed thereon for

allowance, and seasonably presented to the trial jud ont’

orable James A. Lowell). The trial judge, ing’ nsels’

presence, examined the bills and orally allowed them. Later

the same day, not in counsels’ presence (R. 290, 307, 312),

he endorsed in writing at the end of each bill the following:

‘Allowed August 20, 1930 J. A. L.

D.J.’’ (R. 219, 221, 236, 237).

*The printed record (R. I to 263) omits certain exhibits in evidence, largely

photographs, blue-prints and diagrams, which by stipulation were submitted

direct from the District Court to the Circuit Court of Appeals (R. 11, 219, 237)

in the form of one bound volume of approved copies. That volume is submitted

herein by the clerk of the Circuit Court of Appeals for the First Cireuit.

+There were four bills of exceptions assented to and seasonably allowed in

each case, one to the trial merits, and one to refusals of a new trial (R. 219, 221,

236, 237). As each involved and was disposed of on the same issue, we generally

refer to them in the singular.

og

3

The Cireuit Court of Appeals for the First Circuit felt

bound by some precedents of this Court to hold that the

district judge had not sufficiently authenticated his allow-

ance of the bills by this endorsement, and because of this

lack of a sufficient signature by the judge there was no bili

of exceptions in the Court of Appeals. So the judgments

below were affirmed (R. 269).

The present petition for certiorari squarely raises the

issue, perhaps for the first time, to what extent and how far

the amendment to statute U.S. Code, tit. 28, see. 391, passed

in 1919 (St. February 26, 1919, ¢. 48), has done away with

such technicalities as are here raised on the basis of old

precedents. This statute and the spirit of the latest de-

cisions of this Court, we submit, leave our Federal Courts

not only free to disregard such trivialities, but compel them

to overlook technicalities which in the past stubbed the

judicial toe over the dotting of an ‘‘i’’ or the crossing of a

‘*t’’, The order of the day now is that parties shall not be

deprived of a chance to have rights finally adjudicated on

their merits in a court of justice because a judge adopts as

his signature an informal rather than a formal form.

The question here presented is whether the later decisions

of this Cou:t, interpreting the statutes and rules of Federal

procedure, have not introduced this new and more liberal

viewpoint and superseded earlier decisions of this Court.

Our brief will show that the trial judge and the clerk of

Court followed a long-established practice of this District

Court and Cireuit Court of Appeals for the First Circuit in

treating as sufficiently allowed for appellate purposes a

bill of exceptions signed by the trial judge with his initials.

Over a long period of time bills of exceptions signed by the

trial judge with initials only had been accepted as the record

on review and appeal to the Cireuit Court of the United

States for the First Cireuit. Prior to this decision that

practice in the District Court and the Cireuit Court of Ap-

peals had in no way been criticized. Without comment this

... practice was considered by the judges, clerks and bar in said

Me NEIL TAL en 4

4

District Court and in said Cireuit Court of Appeals as

proper practice. We invite attention to the certificate of

the clerk of the District Court submitted herewith (a copy

appears on page 8 hereof) and to the request of the District

Judge Lowell (R. 312).*

On March 22, 1932, the Court of Appeals, without con-

sideration of the merits, rendered its judgments affirming

the judgments of the District Court based solely on this

technical defect (R. 269, 270).

The Court failed to consider the bearing on the error in

question of the statute of ‘‘Harmless Error’’ (U.S. Code,

tit. 28, art. 391), or of the statute of ‘‘Amendments’’ (U.S,

Code, tit. 28, art. 777), and the rule announced and the course

followed by this Court in the same and like situations in

Michigan Ins. Bank v. Eldred, 143 U.S. 293, and United

States (Ex Rel. Kinney) v. U.S. Fidelity Co., 222 U.S. 283.

(‘Phis we discuss in our brief, pp. 18-28.)

*This point would probably not have arisen if respondéht’s counsel, after

having assented to the bills of exceptions, shortly before .oral argument in

its brief for the first time had not questioned the sufficiency of Judge Lowell’s

signatures to these bills. Neither then nor later did they file or present any

formal motion to that issue.

The claimed defect coming to your petitioner’s actual knowledge for the

first time just before argument in the Circuit Court of Appeals, your peti-

tioner sought and believed it had in the limited time available found an answer

to that issue under the statutes and authorities which it cited in a supple-

mental brief filed at the opening of its oral argument. Your petitioner first

brought the question to the actual attention of the Circuit Court at the open-

ing of its oral argument, defined the issue, stated that counsel thought his

supplemental brief cited authorities enabling the Circuit Court to dispose of

the issue in these cases, but asked that if the question became of moment he

might further be heard and take such proceedings as might lie to cure any error,

The presiding judge, to counsel’s statement that the issue turned on the

fact that Judge Lowell had signed the bills of exceptions with his initials only,

asked, in substance, ‘‘What difference does that make?’’ to which counsel

replied, in substance:

‘There is an old case in 125 U. S. where the Supreme Court said it

did make a difference and while I feel my supplemental brief points out

authorities which in this case enables this Court to deal with these bills

on their merits I would like in case the Court does not agree with my ideas

permission to be heard and to file such proceedings as may be necessary to

cure the error.’’

The presiding judge replied in substance:

‘*All right, proceed.’’

Oral argument was thereafter confined to the merits, and none to defective

authentication (R. 273, 307).

In that supplemental brief your petitioner called to the Court’s attentian

the facts that each of the bills was assented to and actually allowed and

5

Instead it erroneously ruled that the amendment neces-

sary to cure the imperfect zuthentication was one of sub-

stanee, which could not be had after the term at which the

judgments were entered had expired. On that ruling, and

not as a matter of discretion, it denied »pportunity for the

necessary amendment and affirmed the District Court’s

judgments.

A petition for rehearing was filed on April 20, 1932, and,

without opportunity for argument and without opinion,

denied on May 6, 1932 (R. 313).

The opinion of the Cireuit Court herein presented for re-

view is reported in 57 F. (2d) 44.

This petition is presented under the provisions of the

U.S. Code, tit. 28, see. 347.

The reasons relied on by your petitioner for issuance of

said writs, and upon which your petitioner believes the

writs ought to be issued, are as follows:

1. There is involved here the important issue of whether

the Federal practice shall go forward under a proper inter-

pretation of recent Federal statutes and decisions to free

itself from still persisting clogs of technicalities which pre-

vent decisions on the merits because of trivialities which

hang on ancient precedents.

cited, among other authorities, the statute pertaining to record on appeal (U.S.

Code, tit. 28, see, 865), the statute of amendments (U.S. Code, tit. 28, sec. 777),

the practice of this Court as to amendments defined in Idaho g Oregon Land

Co, v. Bradbury, 132 U.S. 509, 513, and in Norton vy. Larney, 266 U.S. 511,

516, and as followed by said Circuit Court of Appeals in Koch v. Sidney Blu-

menthal § Co., 3 F. (2d) 395. Attention there was called to the policy of

Federal Courts in like matters illustrated in State of Kansas v. Meriwether,

171 F. 39 (C.C.A, 8), Nashua & Lowell R. Co. v. Boston §& Lowell R. Co., 61 F.

237 (C.C.A. 1), Cunningham v. German Insurance Co., 103 F, 932 (C.C.A. 6),

Railroad Co, v. Schutte, 100 U.S. 644, and Bedford v. Henry Miller, Inc., 212 F.

368 (C.C.A. 4). Attention was also called to the power of amendment illus-

trated in Wight, Petitioner, 134 U.S. 136, 143, and Gagnon y. United States,

193 U.S. 451, 456, and to the duty of a trial judge to sign a proper bill of

exceptions, even after judgment term, illustrated in Re Federal Life Ins. Co.,

248 F. 908 (C.C.A. 7), and Schmidt v. Standard Steel Car Co., 202 F. 1023

(C.C.A, 2), On these facts, these and other like authorities (and not merely

on the fact of an assented to bill of exceptions as the Cireuit Court in its

opinion erroneously states, R. 268) your petitioner before the Circuit Court

took the position that that Court should treat the error as harmless and give

these bills their intended legal effect by treating them as though the imperfect

authentication had been perfected.

——————— on

6

2. The decision introduced uncertainty in Federal prac-

tice in that it is in conflict with a long-standing decision from

a Circuit Court of Appeals of equal rank.

3. There is also involved the application and bakes

tation of the liberalizing recent Federal statutes which were

meant to do away with miscarriages of justice, so that cases

may not be disposed of for technical defects in practice or

want of form alone.

4. The decision of this Court on matters herein involved

is necessary that the interpretation of the statutes and the

rules of Federal practice may be kept uniform throughout

the various circuits.

5. An important Federal statute has been disregarded

or misinterpreted by the Circuit Court of Appeals for the

First Cireuit, which raises a question of general applica-

tion in Federal practice and procedure and which has not

been, but should be, settled by this Court.

6. Said Circuit Court of Appeals has decided a question

of Federal law of general application so as to be in conflict

with applicable decisions of this Court and procedure in

Federal practice.

7. Said Cireuit Court of Appeals has so far departed

from the accepted and usual course of judicial proceedings

as to call for an exercise of this Court’s power of super-

vision.

Wherefore your petitioner prays that in each said case

a writ of certiorari herein issue.

GEORGE A. OHL & COMPANY,

By Lee M. FriepMan,

Louis B. Kiva,

Its Counsel.

7

COMMONWEALTH OF MassaCHUSETTS.

SUFFOLK, Ss. Boston, July 5, 1932.

Louis B. King, first being duly sworn, deposes and says:

That he is of counsel for the petitioner, George A. Ohl &

Company; that he has read the foregoing annexed petition,

and knows well the contents thereof; that he also carefully

had read and studied the transcript of the record which ac-

companies said petition, being the transcript of the record of

the case at bar; that the matters in said petition contained

are, in the judgment of each affiant, duly supported in and

by said transcript of record and the certificate of the clerk

of the District Court of the United States for the District of

Massachusetts, submitted with said petition; and that he

knows of the above proceedings had, and that the acts and

facts in said petition stated are true to the best of his knowl-

edge and belief.

Subscribed and sworn to before me the day and year first

above written.

CARLTON SPENCER,

Notary Public.

We do hereby eacu certify that we each carefully have

examined the foregoing petition for writs of certiorari;

that the allegations thereof are true, as we each verily be-

lieve, and in the opinion of each of us the petition is well

founded and each of the cases is one in which the prayers of

the petition should be granted by this Court.

LEE M. FRIEDMAN,

LOUIS B. KING,

Counsel for Petitioner.

8

District Court or THE Unitep States

District or MassacHuUsETTS

Law No. 3210

Grorce A. Ont & Company

Plaintiff

v.

A. L. Smiru Tron Works

Defendant

Law No. 3267

A. L. Smita Iron Works

Plaintiff

v.

Grorce A, Ont & Company

Defendant

CERTIFICATE OF JAMES S. ALLEN, CLERK

I, James 8. Allen, Clerk of the District Court of the

United States for the District of Massachusetts, and the

custodian of its files and of the files and records of the former

Circuit Court for the District of Massachusetts, do hereby

certify that :—

1. I have been Clerk of this District Court since July 2,

1917. The deputy clerks of this court have been employed

in this office for varying lengths of time, one of them having

commenced his service in this court in 1888; another in the

Cireuit Court in 1894; another in 1898, and another in 1907.

Prior to making this certificate, I have inquired as to the

matters herein stated of each of the deputy clerks who have

9

had familiarity with appellate records in this court or the

old circuit court, including the four above referred to, and

this certificate is based upon the memory and recollection of

each of these deputy clerks, as well as my own.

2, For many years, bills of exceptions in this district have

frequently been signed by trial judges with initials only,

and bills thus signed have been, so far as we know, univer-

sally regarded both by the judges, the clerks and deputy

clerks, and the bar generally, as sufficiently allowed and

signed for appellate purposes. Very many bills of excep-

tions thus signed by the trial judge with initials only have

formed a part of the record for appellate review and have

constituted a part of the record entered in the United States

Circuit Court of Appeals for the First Cireuit. Prior to

the hearing and decision by said Circuit Court of Appeals

of the above entitled cases, this practice has never been

commented upon, criticised or condemned by the judges of

this court or of said Circuit Court of Appeals, so far as my

deputies and I can recall; and so far as we can recall, until

the above entitled cases were decided, every case in which

the bill of exceptions was signed by initials only has been

treated and disposed of by the said Circuit Court of Appeals

as though the bill of exceptions was sufficiently signed and

authenticated.

3. Ineach of the following cases appealed from this court

to the Cireuit Court of Appeals, the bill of exceptions was

signed by the judge with his initials only, and was disposed

of on its merits and without criticism of said signature by

said Court of Appeals. I have made no effort to locate all

such cases, the few mentioned being cited merely as an illus-

tration of the custom and without attempting to show how

frequently or during how long a period the custom has

existed :—

Law 1794 National Shawmut Bank v. Boston 1925

7 F. (2) 1020 (case 6)

SE A

10

Crim 5609 Capuano v. United States 1925

9 F, (2) 41

Law 484 Wing v. McCallum, 1927

16 F. (2) 645; 30 F. (2) 505; 31 F. (2)

940.

** 4087 Mitchell Woodbury Corp. v. Albert Pick

Barth Co. Ine. et al. et Tr. 1929

41 F. (2) 148.

‘¢ 3926 Harry Ford v. United States 1930

44 F. (2) 754

‘* 2700 Robert M. Leach, Ex’r. v. Maleolm E.

Nichols, Collector 1930

42 F. (2) 918; 50 F. (2) 787

‘* 3762 Agnes T. Carville, Admx.v. N.Y.C.RR. = 1931

53 F. (2) 153

‘* 3763 Emma E. Staples, Admx.v.N. Y.C. RR. 1931

; 53 F. (2) 153

‘* 3498 Nonantum Investment Co. v. Maryland

Casualty Co. 1931

56 F. (2) 329

‘* 4273 Gertrude L. Holmes v. The Ginter Res-

taurant Co. 1931

54 I. (2) 876

‘* 4216 Evelyn Ellsmore v. Erlanger Tremont

Theatre Corporation 1931

56 F. (2) 809

‘* 4230 John Farr, Jr. et al. v. N. E. Trust Com-

pany 1931

57 F. (2) 103

Crim 9544 United States v. Edward Cohen 1931

56 F. (2) 28

This certificate is made at the request of counsel for

George A. Ohl & Co. respectively plaintiff and defendant in

the above entitled cases.

wt

11

In Testimony Whereof, I hereunto set my hand and affix

the seal of said District Court, at Boston, in said District

this 2nd day of June, A. D. 1932.

JAMES 8S. ALLEN

James 8. Allen, Clerk of the District

Court of the United States for the

District of Massachusetts

{Seal of Court]

Original of above submitted with original petition.

——

Supreme Court of the United States.

Ocroser TERM, 1932.

No.

GEORGE A. OHL & COMPANY, petitioner,

v.

A. L. SMITH TRON WORKS, responpent.

No.

SAME v. SAME.

Brief in Support of Petition for Writs of Certiorari.

A.

STATEMENT OF CASE, QUESTIONS RAISED AND

ERRORS ASSIGNED.

The trial judge wrote at the end of an assented to and

Bear Rg US RRA eet RS ie Pen AR a pets

meritorious bill of exceptions: ‘‘ Allowed, August 20, 1930. i

J. A. L. &

ne”. 2

(R. 219, 221, 236, 237.) ;

He followed a long-established practice at least tacitly

approved and not before criticized by the Circuit Court of

Appeals for the First Circuit. That practice was first chal-

lenged by this respondent just before argument, practically

nine months after appeals in these cases had been entered

(Petition, p. 4). Because of the form of the signature of

the district judge on the bill of exceptions the Cireuit Court ce

of Appeals, not as a matter of discretion, but because of its b,

ideas of the limitations of its power, refused to consider the

merits of the appeal, refused to treat the defect as amended,

refused opportunity for amendment and affirmed the Dis-

trict Court judgments (R. 269).

57 F. (2d) 44.

14

The resultant facts and errors are:

1. This decision is in conflict with another Cireuit Court

of Appeals decision which had established the practice of

the Federal Courts years ago.

2. Two important Federal statutes regulating practice

are misinterpreted.

(a) The trial judge’s personal mistake was ‘‘harmless

error’’ within U.S. Code, tit. 28, see. 391.

(b) The mistake was amendable within U.S. Code, tit.

28, sec. 777.

The Cireuit Court of Appeals not only erroneously inter-

preted, but misapplied, these statutes.

3. The rule of ‘‘judgment term,’’ limiting action after

the expiration of the judgment term, was erroneously ap-

plied by the Court in deciding that the application of this

rule precluded a curing of an error such as here existed.

4. That the case was pending in the Circuit Court of

Appeals when the question was first raised does not pre-

vent amendment. That the Court was in error in deciding

the contrary.

5. So far as the Cireuit Court of Appeals had discretion-

ary power, on the facts of these cases, where the signature

of the trial judge was in accordance with recognized custom

and where the established practice of the circuit showed a

long-continued condonation of that custom, the Circuit

Court of Appeals did not use a sound judicial discretion in

inflicting on the appellant so severe a penalty for a fault for

which it was in no wise blameworthy.

Compare Barber Asphalt Co. v. Standard Co.,

275 U.S. 372, 386-387.

B.

THERE WAS MERIT IN THE BILLS OF EXCEPTIONS

WARRANTING JUDICIAL REVIEW.

We assume that if there was plainly no merit in our bills

of exceptions, relief would not be granted us. We therefore

outline some of the substantial issues involved in the trial,

without arguing them to show that the questions raised

merited consideration in the Court of Appeals.

1. The contract in issue was formal, complete, written,

signed and sealed (R. 11-14). Yet the trial Court refused

so to construe it (R. 250, Assignment 33).

2. The trial Court violated the parol-evidence rule in ad-

mitting evidence of negotiations prior to the making of the

contract upon which was based a claim of implied warranty

inconsistent with the express warranty (R. 238, Assignment

1). The trial Court refused to construe the contract on

material issues, and left its construction largely for the

jury (R. 241, Assignment 2; R. 251, Assignment 34; R. 252,

Assignment 35; R. 253, Assignment 36).

3. The trial Court ruled that there was an implied war-

ranty ‘‘that the machine would do perfect work’’ (R. 214,

253, Assignment 36).

4. The defects claimed by the buyer were actually ob-

served on April 15, 1926 (R. 8, 9, 10). The first notice

claimed was on June 25, 1926 (R. 9, Specification 9; R. 30,

Exhibit CC), which the trial Court ruled to be in error (R.

83, 84), describing a defect that did not exist (R. 75, 80, 82).

The next notice claimed was August 13th (R. 9, Specification

9-B; R. 32, Exhibit EE )—120 days after the claimed defects

had heen observed in actual operation (R. 8, Specifications).

Yet the trial Court ruled as a matter of law that notice was

given seasonably under the Sales Act (R. 255, Assignment

41; R. 257, Assignment 42).

5. The trial Court refused to require the buyer to elect

between its inconsistent remedies, recoupment defense or

breach of warranty action in accordance with the Sales Act

of Massachusetts, General Laws, ec. 106, sec. 58 (1 a, b (2)).

Mark vy. Stuart Howland Co., 226 Mass. 35 and 43 (R. 249,

Assignments 26, 27).

6. The machine was delivered March 15, 1926 (R. 8,

Specification 1; R. 62). By the respondent in an experi-

16

ment it was broken October 15, 1926 (R. 94), after being in

use six months (R. 8, Specification 2). The jury was charged

on May 7, 1929 (R.5). Yet on damages the Court instructed

the jury to find the value of the machine, once ‘‘before it

broke’’ and again ‘‘in its present condition’? (R. 216; R.

258, Assignment 48).

7. In a trial which took three weeks (R. 4) the judge

charged the jury in this very technical and complicated case

for not over ten minutes (R. 213-217, Assignments 50, 51,

52; R. 218, Exceptions R, 8, T).

8. Under the charge and verdicts the respondent was per-

mitted to keep the merchandise (R. 215, line 28), to get

back the $4963 it paid for it (R. 32, Exhibit EE; R. 215, 216),

the $2531.75 it spent for repairs (R. 110, 216), a total of

$7494.75, ineluded in its $7500 verdict (R. 234), and is ex-

cused from paying the $6504 note balance owed for it (R. 5).

On-this charge and these verdicts the respondent keeps the

machine, the motor and dies, about the last two of which

there never was any issue raised (R. 215), for all of which

it pays nothing at all.

We invite a reading of the original brief to the merits filed

for the petitioner, a copy of which accompanies the petition

herein.

cS

ARGUMENT.

&

The Present Decision is in Conflict with the Practice Established

by Another Federal Circuit Court of Appeals, and Introduces

Uncertainty into Federal Procedure and Practice.

It is, of course, difficult to get reported cases from Cireuit

Courts of Appeals dealing with a situation such as ours as,

we believe, most of such cases were so liberally dealt with as

to be handled without opinions on such issues. Reported

decisions where this issue has arisen are almost nil. The

xs

Se”! FY

17

one Cireuit Court of Appeals which has dealt with the same

principle and in an identical situation is the Eighth Circuit.

The case arose in 1924:

‘‘The first ground of the motion to dismiss rests upon

this condition of the bill of exceptions. At the end of

the recital of the proceedings at the trial appears the

usual form of an approval of the bill of exceptions with

the dates blank and the place for the signature of the

judge blank, just over the words:

‘¢ «Judge District Court of U. S. Southwestern Divi-

sion, Western District of Missouri.’

‘‘ Also below this appear the words:

‘¢<The above and foregoing bill of exceptions is here-

by approved, Griffin & Orr, Attorneys for Defendant

William J. Burns International Detective Agency, Inc.

McReynolds and McReynolds and John Flanigan, At-

torneys for First National Baak of Sarcoxie, Missouri.

‘* «Tet the bill be filed and the filing show of record as

of this 25th day of February, 1922.

Arspa S. Van VALKENBURGH, Judge.’

‘“‘This condition of the bill of exceptions convinces

that counsel for the plaintiff prepared it, and submitted

it to the counsel for the defendants; that thereafter

counsel for the plaintiff either presented it or caused it

to be presented to the trial judge; that he intended to

allow and certify it in the usual form, but by mistake

wrote his name in the last blank for his signature, in-

stead of in the blank at the foot of the usual certificate.

He would not have ordered the bill of exceptions filed, if

his mind had not assented to its approval, and as counsel

for the defendants stipulated that the bill of exceptions

was correct, the mistake of the judge in the placing of

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ae 9 AMEN A SSE SAAS HANSA AED PIG PSEA PIT ELISA RE GR Mv tee MAUR LUM rapes DRE RS RCT RE TR aS Pont DERE eee NE Aven Depo RET ne TAR CRN aN

pelea Ary Sos ihe i ie aS Sikes eos

18

his signature ought not to deprive the plaintiff of the

benefit of her writ of error. U.S. Compiled Statutes,

§1591. The motion to dismiss the writ of error is there-

fore denied.”’

Steen v. First National Bank, 298 Fed. 36, 37, 38

(C.C.A. 8).

This case has stood unchallenged as a precedent for the

intervening eight years until the decision of our Court. Our

case and this cannot be distinguished on principle. We there-

fore ask this Court to speak authoritatively as to which of

these equally ranking decisions is to be the law.

Il.

Liberalized Federal Practice Does Away with Such Technicali-

ties of Procedure as were here Applied.

From the very beginning in 1789 there has been a con-

stantly growing, distinet and vocal public sentiment that the

administration of justice in our Courts should be brought up

to date and the law freed from slavish adherence to prec-

edents which from one cause or another had grown into

hard and fast rules of procedure as the law made its slow

progress from mediaeval lawyers’ refinements to become a

working machine for administering practical justice.

In response to this popular demand Congress in 1915

passed an act doing away with some still persisting arti-

ficialities of Federal pleadings and procedure. This act

freely allowed at any stage amendments of pleadings and a

change of form of action from equity to law or from law to

equity (U.S. Code, tit. 28, see. 397); and provided for the

interposition of equitable defenses and the granting of

equitable relief in actions at law; gave the Appellate Courts

full power to render such judgment upon the record as law

and justice required without too nice a regard to technicali-

ties (U.S. Code, tit. 28, see. 398) ; also permitted to be shown

19

at any stage in the litigation that Federal jurisdiction based

on diversity of citizenship existed (U.S. Code, tit. 28, sec.

399).

Act March 3, 1915, ec. 90.

In 1919, as another step of progress, Congress passed an

additional act further unfettering Federal Appellate Courts

by giving them power to render decisions based on the sub-

stantial rights asserted by litigants even though there were

procedural defects in presenting them. There was then

added to the Judicial Code the provision :

“On the hearing of any appeal, certiorari, writ of

error, or motion for a new trial, in any case, civil or

criminal, the court shall give judgment after an exam-

ination of the entire record before the court, without

regard to technical errors, defects, or exceptions which

do not affect the substantial rights of the parties.”’

St. February 26, 1919, c. 48, now part of US.

Code, tit. 28, sec. 391.

This as well as all these Federal statutes of similar nature

previously enacted were—

‘‘designed to free the administration of justice in the

Federal courts from all subtle, artificial and technical

rules and modes of proceeding in any way calculated to

hinder and delay the determination of causes in those

courts upon their very merits.’’

McDonald v. Nebraska, 101 Fed. 171, 176 (C.C.A.

8).

The “‘defects’”? and ‘‘technical errors’? which the last

statute eliminates have to do with shortcomings in the tech-

nique of the judicial procedure which a litigant must use to

assert his substantial rights. The shortcoming here in the

form of the judge’s signature authenticating an agreed upon

20

bill of exceptions concerns only the method of asserting our

rights. Where this Court in modern practice has enforced

with any strictness rules relating to bills of exceptions, it has

done so for ‘‘substantial’’ and not ‘‘technical’’ errors.

‘*Strict requirements are thus insisted on so as to

make certain that the reviewing court shall have before

it an accurate account of the evidence or exhibits, which

were before the trial court in the original hearing of the

issues of the case, properly certified.’’

Krauss Brothers Lumber Co. v. Mellon, 276 US.

386, 390.

The case at bar presents no uncertainty as to the record,

for the Appellate Court can completely ignore the defective

signature and rely on other recitals of the record certified

under seal by the clerk of the District Court (R. 226, 263)

which show:

‘*On the 20th day of August A. D. 1930, the substitute

bill of exceptions, motion to amend substitute bill of

exceptions and the bill of exceptions concerning the

plaintiff’s motion for a new trial are allowed’’ (R. 6).

Record, 7, shows entered on the bill of exceptions:

‘*Filed August 8, 1930; amended and allowed August

20, 1930.’’

To a like effect see R. 221, 236, 237.

This same problem was present in one of our recent

Massachusetts cases where a fuperior Court judge endorsed

with initials only a denial of a motion to vacate judgment.

The Appellate Court felt constrained to hold that the

initials must be disregarded as a judge’s signature, but the

official attestation of the clerk of the lower Court to the effect

that the motion to vacate judgment had been denied appear-

21

ing in the record the Appellate Court took official cognizance

of the record as a whole.

Fairbanks v. Beard, 247 Mass. 8, 9.

It is respectfully submitted that our case shows no ‘‘total

failure to observe an important regulation in matter of

substanee’’ as in Barber Asphalt Co. v. Standard Co., 275

US. 372, 384.

Under this statute what is incumbent upon an Appellate

Court is that the Court be—

‘required, however, by the Act of February 26, 1919

(U.S. C. A. §391) on hearing of an appeal, to give judg-

ment ‘after an examination of the entire record before

the court, without regard to technical errors, defects or

exceptions, which do not affect the substantial rights of

the parties’ . . . courts exist to do justice ; and it would

be a reproach to any legal system to deny a litigant

relief, to which upon his pleadings and proof he is en-

titled, merely because his counsel have come in by the

wrong door of the court.”’

Clarksburg Trust Co. v. Commercial Casualty

Ins. Co., 40 F. (2d) 626, 634 (C.C.A. 4).

The ease at bar presents an instance of where there was

an almost complete compliance with all requirements, im-

perfect only in that the judge signed his name informally.

The mistake was not that of a litigant, but solely that of the

judge. It was at worst a mere irregularity of form. There

is no question but that it was the judge’s signature. The

fact that he did not write his name in full was an error of

the most harmless kind, in no way doing any injustice to the

respondent. If ever an error can be ‘‘harmless,’’ is not this

an extreme instance? If ever a defect is ‘‘technical,’’ is not

this the most technical of such defects?

22

III.

The Mistake was Amendable.

The amendment asked was only to perfect a partial or

imperfect authentication of the bill. It sought only to give

effect to the trial judge’s act allowing the bill. It neither

amends nor disturbs the judgments themselves, nor imports

or detracts any substantive item not already in the case.

‘‘Derects oF Form; AMENDMENTS.—No summons,

writ, declaration, return, process, judgment, or other

proceedings in civil causes, in any court of the United

States, shall be abated, arrested, quashed, or reversed

for any defect or want of form; but such court shall

proceed and give judgment according as the right of

the cause and matter in law shall appear to it, without

regarding any such defect, or want of form, except those

which, in cases of demurrer, the party demurring spe-

cially sets down, together with his demurrer, as the cause

thereof; and such court shall amend every such defect

and want of form, other than those which the party

demurring so expresses; and may at any time permit

either of the parties to amend any defect in the process

or pleadings, upon such conditions as it shall, in its

discretion and by its rules, preseribe.’’

U.S. Code, tit. 28, see. 777.

From the beginning this Court announced, and all Federal

Courts consistently have followed, that the intended purpose

of the statute is remedial, entitled to a most liberal con-

struction and intended to avoid miscarriage of justice

through technical faults of form.

‘The authority to allow such amendments is very

broadly given to the courts of the United States by the

thirty-second section of the judiciary act of 1789, e. 20

(now section 954, Rev. St. U. 8S.) and quite as broadly,

to say the least, as it is possessed by any other courts in :

23

England or America, and it is upheld upon principles of

the soundest protective policy.”’

Matheson’s Adm’rs v. Grant’s Adm’r, 2 How.

263, 281 (per Story, J.).

Norton v. Larney, 266 U.S. 511, 516.

Taylor Co. v. Anderson, 275 U.S. 431, 438.

‘The discretion of the court to allow amendments is

so clearly conferred by section 954 of the Revised Stat-

utes (U. S. Comp. St. 1901, p. 696) that it is unecessary

to cite any of the numerous cases on the subject. When

a party gets his cause of action, or his defense, or his

appeal, before a court of competent jurisdiction, he

should not be turned out before trial of the merits of the

controversy, except in obedience to a clear statutory

mandate, or on a showing of gross carelessness or bad

faith. The absolute dismissal of a plea or an appeal,

for error in a matter of mere procedure, is in reality the

infliction of the severest penalty for a minor fault, and

is suggestive of the excessive punishments formerly in-

flicted for minor offenses in the administration of the

criminal law. Conformity to rules of procedure is im-

portant, but usually it may be secured by imposing as a

condition of amendment the payment of costs or other

penalty, short of dismissal, or the party or his counsel,

as circumstances may require, for negligence or inad-

vertence.’’

Bedford v. J. Henry Miller, Inc., 212 Fed. 368, 370

(C.C.A., 4).

‘‘Under section 954 of the Revised Statutes the right

of amendment extends to the ‘summons, writ, declara-

tion, return, judgment, and other proceedings in civil

causes in any court of the United States,’ and may be

exercised at any stage of the case, even after trial and

judgment. The extended and beneficent use made of the

;

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24

authority given by this section to make amendments ig

disclosed by a long line of decisions of the supreme

court of the United States covering every step in a case

from the summons to the verdict and judgment.”’

McDonald v. Nebraska, 101 Fed. 171, at 177

(C.C.A. 8).

Under this statute the power of an Appellate Court ‘‘in

its discretion to allow such amendments—and its duty to do

so in appropriate cases, cannot be doubted.’’

Norton v. Larney, 266 U.S. 511, 516.

Allowance of a bill of exceptions is the main element.

Signature is the form by which that allowance is evidenced.

It is like a writ, issuing from Court, lacking a seal of the

Court, or a signature, or wanting some other such element.

In such instances Federal Courts have repeatedly declared

such defects in writs, as lack of a seal, lack of a return day,

or lack of the proper signature, lack of the proper test, or

the like mere matters of form, capable of amendment.

United States v. Turner, 50 Fed. 734.

Cotter v. Alabama, G. & S. R. Co., 61 Fed. 747.

Bryan v. Ker, 222 U.S. 107, 112.

Miller v. Texas, 153 U.S. 535.

re Texas &€ Pacific Ry. Co. v. Kirk, 111 U.S. 486, 487.

Moreover the bill, with its authentication, whether com-

plete or imperfect, is a record of the trial Court (Pomeroy’s

Lessee v. Bank of Indiana, 1 Wall. 592, 599), and as such the

authentication at least is capable of amendment by that

Court. While a record cannot lawfully be amended after the

term unless there is official evidence on which to base an

amendment, and something to amend, where those two ele-

ments exist the amendment may be had nunc pro tunc. This

Court has said that even where there is no evidence of official

25

action beyond the judge’s recollection of the facts, any

entry justified by such recollection may be made nunc pro

tune.

In re Wight, 134 U.S. 136.

Michigan Ins. Bank v. Eldred, 143 U.S. 293, 299.

In re Plymouth Cordage Co., 135 Fed. 1000, 1003

(C.C.A. 8).

Brownv. United States, 196 Fed. 351, 353 (C.C.A.

7).

It is a puzzle to us just why our Court chose to pick out

Origet v. United States as its precedent. The six cases from

this Court which have touched this subject, the other five

both preceding and following Origet v. United States, we

submit recognize that a defective authentication may be

amended.

The principle which we urge—that defective authentica-

tion is amendable—is illustrated in the decisions of this

Court, one of which seems to deny and five to recognize it.

1. Mussina v. Cavazos, 6 Wall. 355, at 363 (1867):

‘“Whatever might be our opinion of the exceptions

which appear in the record, if they were presented in

such a way that we could consider them, we find them

beyond our reach, The bill of exceptions, or what pur-

ports to be a bill of exceptions, covering more than

three hundred and fifty pages of the printed record, is

neither signed or sealed by the judge who tried the

‘ase: and there is nothing which shows that it was sub-

mitted to him or in any way received his sanction.”’

The underlined clause was unnecessary to the decision

unless the Court considered the defect amendable had there

been anything ‘‘which shows that it was submitted to him

(the trial judge) or in any way received his sanction.’’

26

2. Blitz v. Brown, 7 Wall. 693, at 694 (1868) :

The clerk’s certificate to the transcript of record submitted

on writ of error was a blank form without seal of court or

signature of clerk. Held, there was no authentication what-

ever, so the Court was without jurisdiction aad the writ was

dismissed.

3. Origet v. United States, 125 U.S. 240, 243, 244 (1888):

The bill of exceptions was signed ‘‘A. B.’’ The Court held

the initials ‘‘A. B.’’ not the signature of the judge, not a

. sufficient authentication, nor sufficient evidence of its allow-

ance by the judge of the Court and refused to consider its

contents. There was nothing to show who ‘‘A. B.’’ was, or

anything to indicate that if properly authenticated the bill

of exceptions merited a review, or that any effort had earlier

been made to have the mistake corrected. The implication

is that the right of amendment was denied.

4. Idaho & Oregon Land Co. v. Bradbury, 132 U.S. 512,

513 (1889) :

This was a case of defective authentication of the transcript

of the record. The certificate of the clerk was complete ex-

cept for signature, which was omitted. Although recog-

nizing the authority of Blitz v. Brown, the Court here held:

‘‘The question presented is not one of no authenti-

cation, but of irregular or imperfect authentication;

not of jurisdiction but of practice. It is, therefore,

within the discretion of this court to allow the defect

to be supplied. Considering that the motion to dismiss

was not made until it was too late to take a new appeal

or writ of error, justice requires that the record should

be permitted to be withdrawn for the purpose of having

the certificate of authentication perfected by adding the

signature of the clerk.’’

This decision overrules the implication in the Origet case.

4

27

5. In Michigan Insurance Bank v. Eldred, 143 U.S. 293,

998, 299, this Court considered specifically the question of

amending bills of exception, seasonably filed, after the judg-

ment term, and held:

“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

ease 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 anend....

“The duty of seasonably drawing up and tendering a

pill of exceptions, stating distinctly the rulings com-

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plained of and the exceptions taken to them, belongs to i

the excepting party, and not to the court; the trial court .

has only to consider whether the bill tendered by the »

party is in due time, in legal form, and conformable to

the truth; and the duty of the court of error is limited 4

to determining the validity of exceptions duly tendered 4

and allowed. Hanna v. Mass. 122 U.S. 24. Any fault '

or omission in framing or tendering a bill of exceptions,

being the act of the party and not of the court, cannot

be amended at a subsequent term, as a misprision of the

clerk in recording inaccurately or omitting to record an

order of the court might be. In re Wight, 134 U. S.

136.’’

eve rerrnne

28

The entire second paragraph, and especially the last sen-

tence, was unnecessary unless the Court recognized the pos-

sibility of amendment after the judgment terms for ‘‘ fault

or omission /of the court.”’

6. This Court last dealt with imperfect authentication of

a bill of exceptions in United States (Ex Rel. Kinney) vy.

U.S. Fidelity € Guaranty Co., 222 U.S. 283, 284:

‘*As to the contentions which relate to occurrences

at the trial, they cannot be considered, as the record

contains no bill of exceptions. The paper in the record

styled ‘Exceptions to the charge to jury,’ initialed ‘J.

B. MeP., trial judge,’ and signed by the plaintiff, is not a

bill of exceptions (Origet v. United States, 125 U.S.

240, 243), but if it were to be treated as a bill of excep-

tions as all the matters therein referred to depend for

their solution upon an examination of the evidence

which is not in the record, it follows that we have no

means of determining whether reversible error arose

from an action of the court on any of the subjects to

which the paper refers. This being the case, it becomes

our duty to affirm.”’

This clause underlined was unnecessary unless the power of

amendment existed to be exercised in a meritorious case even

after judgment term.

IV.

** Judgment Term.”

Our Cireuit Court of Appeals decided that it was too late

to send the case back for amendment, as the term at which

the judgments had been entered had expired and the Dis-

trict Court had lost jurisdiction (R. 269). We do not ques-

tion that the general rule is:

‘‘That the bills of exceptions shall be signed before

the trial court loses jurisdiction of the cause by expira-

——

29

tion of the term or such time thereafter as may have

been duly prescribed.”’

Exporters v. Butterworth-Judson Co., 258 US.

365, 369.

Walton v. United States, 9 Wheat. 651, 657-658.

«« . This rule is not without exceptions that there

may be circumstances justifying the signing of the bill

after the expiration of the term et which trial was had.

The rule is not an iron clad rule. It is a rule for the

protection of the rights of parues, but is not to be ap-

plied with vigor to defeat the ends of justice where the

party seeking relief is without fault... . But there

may be circumstances not resulting from laches of the

parties which should avail to relax the rule.’’

Western Dredging & Imp. Co. v. Heldmaier, 116

Fed. 179, 182 (C.C.A. 7).

Not only where the circumstances of a particular case

have justified it has a bill of exceptions been allowed by a

trial judge after the expiration of the judgment term, but

even required by mandamus.

Such exceptions have been recognized by this Court.

Under ‘‘very extraordinary circumstances”? :

Muller v. Ehlers, 91 U.S. 249, at 251.

Jones v. Grover & Baker Sewing Machine Co.,

131 U.S. Appx. el.

Michigan Insurance Bank v. Eldred, 143 U.S.

293, 298.

EE

Meee sh I a

Where justice requires a suspension of the rule:

United States v. Breitling, 20 How. 252, 254.

Dredge v. Forsyth, 2 Black, 563, 568.

Under ‘‘special circumstances”? :

Hume v. Bowie, 148 U.S. 245, 253.

30

Where delay is caused by the judge and assent is given

within the term:

Davis v. Patrick, 122 U.S. 138, 143.

Waldron v. Waldron, 156 U.S. 361, 378.

Where the opponent is estopped from objecting to a late

signature:

Chateaugay Ore & Iron Co., Petitioner, 128 US.

544, 555.

Where delay is through fault of opponent:

Hunnicutt v. Peyton, 102 U.S. 333, 355.

For ‘‘sufficient reasons’’:

Hunnicutt v. Peyton, supra.

Where the judge is away, consent seasonably given:

Taylor v. United States, 52 Sup. Ct. Rep. 466.

Where the fault is the court’s:

Michigan Insurance Bank v. Eldred, supra, at 299.

In our Cireuit Courts of Appeals the following have been

held sufficient within the recognized exceptions :

Inability of Court stenographer to transcribe notes on

exceptions:

Dalton v. Gunnison, 165 Fed. 873 (C.C.A. 9).

Trial judge ill:

Roberts v. Bennett, 135 Fed. 748 (C.C.A. 2).

Re Bills of Exceptions, 37 F. (2d) 849, 851 (8)

(C.C.A. 6).

Exhibits mislaid without fault of excepting party:

Pittsburgh Gas & Coke Co. v. Goff-Kirby Coal

Co., 151 Fed. 466 (C.C.A. 3).

_ auanmee

Presented in time, but delay in settling:

Southwest Metals Co. v. Gomez, 4 F. (2d) 215,

218 (C.C.A. 9).

31

Refusal of judge to sign in form submitted:

Scaife v. Western North Carolina Land Co., 87

Fed. 308 (C.C.A. 4).

Delay for convenience of trial judge:

Western Dredging & Improvement Co. v. Held-

maier, 116 Fed. 179 (C.C.A. 7).

Oral order only of trial judge at time of directing verdict :

Koewing v. Wilder, 126 Fed. 472, 474 (C.C.A. 2).

Delay occasioned by adversary or judge:

Franklin County v. Furry, 144 Fed. 663, 664

(C.C.A. 7).

Seasonably stipulated for settlement, but delay caused by

judge:

Schmid v. Standard Steel Car Co., 202 Fed. 1023

(C.C.A. 2).

Excepting party not guilty of neglect, bill presented in

time, judge refused to sign:

Re Federal Life Insurance Co., 248 Fed. 908

(C.C.A. 7).

Where the parties have done all they can:

Re Bills of Exceptions, 37 F. (2d) 849, 851 (9)

(C.C.A. 6).

Some of these cases turn on consent of an opponent given

during the term. As jurisdiction is never conferred by con-

sent (Exporters v. Butterworth-Judson Co., 258 U.S. 365,

32

369), it follows that the rule and its exceptions are pro.

cedural and not jurisdictional, to be enforced to accomplish,

and not to defeat, substantial justice.

Each of our bills contains a prayer for allowance. Each

is assented to without limitation. The assent continues

until all that is necessary is done to give the bills their in-

tended legal effect and brings them within the ‘‘consent”’

exceptions, supra. The other facts of our case bring these

bills within the principle of the other exceptions to the rule,

They actually and seasonably were allowed (R. 219, 222,

236, 237).

If the defect was so amendable within these exceptions to

this general rule, then the amendment was one which the

District Court was bound to make, and the Circuit Court of

Appeals had both the power and duty to treat the bills as

amended and act accordingly.

Norton v. Larney, 266 U.S. 511, 516.

V.

Appeal Does Not Prevent Relief.

Treating the case as one where ‘‘the District Court has

lost jurisdiction of the case’’ (R. 269) by reason of the

judgment term expiration and the appeal, the Cireuit Court

of Appeals held that both it and the District Court were

without power now to amend or to correct a ‘‘harmless

error.’’ The fact of an appeal pending in the Circuit Court

of Appeals does not prevent any relief otherwise proper.

Barber Asphalt Co. v. Standard Asphalt & Rub-

ber Co., 275 U.S. 372, 386, 387.

VI.

A Reactionary and Unworthy Decision.

This decision sounds a century late. It belongs to the

period of one hundred years ago, when the prisoners were

30

acquitted because the property stolen was that of Marie

Jones and not that of Mary Jones. Decisions like this rankle,

and are a blot on the judicial escutcheon. It works an in-

justice in the case at bar. That is bad enough, but, worse,

it establishes a narrow precedent encouraging practitioners

to treat the practice of the law as a game to be won by

nimble wits manipulating trivialities.

In his request the district judge sets forth that the error

in the signature was his, for which counsel for appellant was

in no way responsible (R. 312). The course followed was

in accordance with the common practice in Massachusetts,

condoned by this very Circuit Court of Appeals (Petition,

p. 8). If the Court felt these bills were not properly

authenticated, it affirmed the judgments ‘‘because of the

transgression—and this notwithstanding the transgression

was largely due to its own course of action.”’ Had it pre-

viously in the early days of this practice discountenanced

such signatures, the District Court judges and clerks would

have changed the practice. Under these circumstances

affirming the judgments ‘‘was a very severe penalty to im-

pose for action which had the court’s implied sanction up to

that time.’? Here the Circuit Court ‘‘passed the bounds of

a sound prensgresston-in affirming the’’ judgment ‘‘ because

wht the transgression.’? The fault being the trial judge’s

personal fault, and not your petitioner’s, the Circuit Court

‘should have remitted the transcript to the District Court

to the end that a further opportunity might be had to comply

with the’’ rule.

Barber Asphalt Co. v. Standard Asphalt & Rub-

ber Co., 275 U.S. 372, 386, 387.

But even beyond this, such a technicality is unworthy of

modern practice of law. The decision itself was unneces-

sary and undesirable, not merely because it worked an in-

justice, but as a step backwards in face of the precedents,

and the liberalized decisions of this Court.

———— :

34

It is respectfully submitted that the writs in each cage

herein prayed should issue to the end that these cases may

be disposed of upon their merits and that a proper Federal

practice may be established.

Respectfully submitted,

FRIEDMAN, ATHERTON, KING & TURNER,

LEE M. FRIEDMAN,

LOUIS B. KING,

Counsel for Grorcr A. Ont & Company,

Petitioner,

EECA el st ane ES