Webber v. Mihills

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court. The decree of allowance of the claim which the appellants sought to review in the District Court was rendered nearly a year before they filed their petition for that purpose, and there is no disclosure in this record of any accident or mistake which prevented an appeal from the order making that allowance or of any diligence in preparing for or prosecuting the petition for its review. The claim was paid, pursuant to the order of allowance, more than nine months before the petition was filed in the District Court, and these facts of themselves would be sufficient to prevent a reversal of the decree dismissing this petition, if that question was here for our consideration. But the fact is that the merits of this case are not within our reach, because no assignment of errors was filed in the court below until more than six days after the appeal was allowed. Section 997 of the Revised Statutes [U. S. Comp. St. 1901, p. 712] makes an assignment of errors, a prayer for reversal, and a citation to the adverse party essential parts of the record upon which a review of the rulings of a trial court may be invoked in the appellate courts of the United States. When an appeal is prayed and allowed in open court the prayer for reversal and the citation may be waived. But the assignment of errors is indispensable to the perfection of the appeal. Rule 11 of this court provides that “the plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors which shall set out separately and particularly each error asserted and intended to be urged. Ño writ of error or appeal shall be allowed until such assignment of errors shall have been filed.” 91 Fed. vi, 32 C. C. A. lxxxviii. Attention has been sharply called to this rule, and the announcement has been plainly made that it would be enforced, although in the earlier cases the errors assigned were carefully examined, that no injustice might result from 66 an unexpected application of the rule. U. S. v. Goodrich, 4 C. C. A. 160, 161, 54 Fed. 21, 22; Union Pac. R. Co. v. Colorado Eastern R. Co., 4 C. C. A. 161, 54 Fed. 22; City of Lincoln v. Sun-Vapor Street Light Co. of Canton, 8 C. C. A. 253, 59 Fed. 756, 759. But in the later cases the rule has been steadily and uniformly enforced. Thus, in Frame v. Portland Gold Min. Co., 47 C. C. A. 664, 665, 108 Fed. 750, 751, a writ of error was dismissed because the assignment of errors was not filed until two days after the issue of the writ. To the same effect are Flahrity v. Railroad Co., 6 C. C. A. 167, 56 Fed. 908; Crabtree v. McCurtain, 10 C. C. A. 86, 61 Fed. 808; Lloyd v. Chapman, 35 C. C. A. 474, 93 Fed. 599, 601; Insurance Co. v. Conoley, 11 C. C. A. 116, 63 Fed. 180; Grape Creek Coal Co. v. Farmers’ Loan & Trust Co., 12 C. C. A. 350, 63 Fed. 891; Van Gunden v. Iron Co., 3 C. C. A. 294, 52 Fed. 838; Railway Co. v. Reeder, 22 C. C. A. 314, 76 Fed. 550. The assignment of errors in this case was not filed until seven days after the allowance of the appeal, and the appeal must be dismissed under rule 11. It is so ordered.