CLARKE v. EUREKA COUNTY BANK.

(Circuit Court, D. Nevada. July 18, 1904.)

No. 728.

1. APPEAL-FINAL JUDGMENT-MOTION FOR NEW TRIAL-PENDENCY.

The judgment of a federal court is not final, so that the jurisdiction of the appellate court may be invoked, while the judgment is still under the control of the trial court through the pendency of a motion for a new trial.

2. SAME-SUPERSEDEAS BONDS-SUFFICIENCY.

Where plaintiff was present when the amount of defendant's supersedeas bond for appeal was fixed by the trial court, and made no objection to the amount fixed, whereupon a writ of error was allowed, the bond accepted, and citation issued, the fact that the amount fixed, was, by inadvertence, some $30 less than the amount actually due on the judgment, including interest, etc., was.immaterial.

& MOTION TO INCREASE BOND-JURISDICTION.

Where a supersedeas bond has been accepted, writ of error allowed, and the citation issued, a motion to increase the bond is within the exclusive jurisdiction of the appellate court.

Motion for Issuance of an Execution.

Alfred Chartz and N. Soderberg, for plaintiff.
Cheney, Massey & Smith, for defendant.

HAWLEY, District Judge (orally). The record in this case shows that the judgment was rendered July 6, 1903, in favor of plaintiff, for the sum of $11,251.75; that thereafter stipulations were filed by the respective parties, and orders made by the court in pursuance thereof, extending the time for plaintiff to file and serve notice of motion for new trial and bill of exceptions, and for a stay of execution. The first of these stipulations was filed January 14, 1903, the second was filed July 31st, and the third August 31st, extending the time up to and including the 21st day of September, 1903. The notice of motion for new trial was filed August 31, 1903, and thereafter set for hearing on September 21, 1903, then overruled, and on the same day this court allowed the writ of error to the Circuit Court of Appeals upon the defendant giving a bond in the sum of $11,500 to operate as a supersedeas bond. It further appears that in due course of time the case was regularly placed upon the calendar of the Circuit Court of Appeals, and on May 2, 1904, the judgment of this court was affirmed. A petition for rehearing was filed, and on June 3, 1904, denied. Thereafter the plaintiff in error, defendant in the court below, moved the Circuit Court of Appeals for, and obtained, an order staying the mandate herein until the Supreme Court pass upon an application for a writ of certiorari to review the judgment herein rendered upon the filing of an additional bond in the sum of $1,000. On July 1, 1904, the plaintiff moved this court "to vacate and set aside the order herein made and entered in said cause on the 21st day of September, 1903, granting the supersedeas and stay of execution, and ordering that upon the giving

11. What decrees are final, see note to Brush Electric Co. v. Electric Imp. Co. of San Jose, 2 C. C. A. 379.

131 F.-10

of a bond by defendant in the sum of $11,500 said bond should operate as a supersedeas bond, and that execution issue herein upon the judgment made and entered by said court on the 6th day of July, 1903, in favor of plaintiff and against said defendant."

1. It is claimed that the writ of error was not sued out within 60 days from the entry of judgment, in accordance with the provisions of section 1007, Rev. St. [U. S. Comp. St. 1901, p. 714], 60 days having elapsed since the judgment was originally entered. This contention is without merit. The decisions of the Supreme Court are to the effect that a judgment is not 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. Kingman Co. v. Western M. Co., 170 U. S. 675, 678, 18 Sup. Ct. 786, 42 L. Ed. 1192, and authorities there cited.

2. It is claimed that the bond given on the writ of error is insufficient in amount to operate as a supersedeas, in this: that it was allowed in a sum about $30 less than the amount then actually due upon the judgment, including interest, etc. This, if true, seems to have been an inadvertence. The plaintiff was present when the amount was fixed by the court, and no objection was made to the amount of the bond. The rule is universal that when a writ of error or an appeal is allowed, the original bond accepted and the citation signed, the jurisdiction of the suit is in the appellate court, and the jurisdiction of the lower court over the cause ceases, and a motion to increase the bond on the writ of error could have been addressed to the appellate court, if so desired. Morrin v. Lawler (C. C.) 91 Fed. 693, and authorities there cited; Keyser v. Farr, 105 U. S. 265, 26 L. Ed. 1025. As was said by the court in Draper v. Davis, 102 U. S. 370, 26 L. Ed. 121:

"The power of the justice over the appeal and the security, in the absence of fraud, was exhausted when he took the security and signed the citation. From that time the control of the supersedeas as well as the appeal was transferred to this court; and even here, as we held in Jerome v. McCarter, 21 Wall 17, 22 L. Ed. 515, in the absence of fraud, the action of the justice or judge in accepting the security, within the statute and within our rules adopted for his guidance, was final, so far as it depended on facts existing at the time the security was accepted."

It necessarily follows that the supersedeas granted by this court by the order allowing the writ of error herein on September 21, 1903, is still in force, has never been, and cannot now be, vacated.

The motion is denied.

In re CARLETON.

(District Court, D. Massachusetts. June 21, 1904.)

No. 8,359.

L. BANKRUPTCY-DISCHARGE-EFFECT OF PRIOR DISCHARGE.

A discharge granted to a bankrupt, in partnership proceedings instituted by himself, is one granted in voluntary proceedings, and precludes him from obtaining a second discharge within six years, under Bankr. Act July 1, 1898, c. 541, § 14b. 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 411].

2. SAME.

The provision of Bankr. Act July 1, 1898, c. 541, § 14b, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 411], which forbids a discharge if the bankrupt has in voluntary proceedings been granted a discharge within six years, is not retroactive as applied to cases where the first proceedings were had prior to its enactment, but merely adds a new condition of discharge in cases instituted after the amendment.

In Bankruptcy. On application for discharge.
William H. Preble, for bankrupt.

Charles H. McIntyre, for objecting creditor.

LOWELL, District Judge. Carleton was adjudged bankrupt upon a petition which he filed as member of a firm composed of himself and one Freeman. On October 28, 1902, he received his discharge. On December 10, 1903, he was again adjudged bankrupt upon his individual voluntary petition, and now seeks for a discharge thereunder. The only objection made thereto is that founded upon section 4 of the Ray bill (Act Feb. 5, 1903, c. 487, 32 Stat. 798 [U. S. Comp. St. Supp. 1903, p. 411]), which forbids discharge if the bankrupt has "(5) in voluntary proceedings been granted a discharge in bankruptcy within six years.

Counsel for the bankrupt has suggested that the first adjudication was not had in voluntary proceedings; but, so far as the present bankrupt is concerned, the partnership proceedings must be deemed voluntary. He contends chiefly that to deny the bankrupt a discharge in this case would be to give to the Ray bill a retroactive effect; but this is not true. The original bankrupt act (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]), indeed, did not forbid successive petitions in bankruptcy and successive discharges thereunder, but it conferred upon a bankrupt no vested right to file successive petitions and to receive successive discharges which is impaired by the Ray bill. That statute is not retroactive. It creates no new offense and imposes no penalty, but only fixes new conditions of discharge in case of petitions filed after its passage. Its language is plain, and, in accordance therewith, the discharge is here refused.

LAKE DRUMMOND CANAL & WATER CO. v. WEST END TRUST &
SAFE DEPOSIT CO.

(Circuit Court, E. D. Pennsylvania. June 27, 1904.)
No. 56.

1. CONTRACTS-PERFORMANCE-INDEMNITY-SURETIES-EVIDENCE-RECORDS. Where a contractor for certain work covenanted to save plaintiff harmless from all claims advanced by any person by reason of the work done or omitted to be done under the contract, and at his own cost and expense to defend all suits which might be brought against plaintiff on such claims, the records of suits so brought in which recoveries were had against plaintiff, which plaintiff paid, were conclusive evidence as against the contractor's surety, provided they disclosed with sufficient certainty that the suits were founded on the negligence or other improper conduct of the contractor.

2. SAME.

Where a contractor agreed to indemnify plaintiff against claims of third persons arising out of the work, but the records in suits brought on such claims did not identify the contractor either by name or description as causing the injury, and it affirmatively appeared that a part of the injuries for which recoveries were had occurred after the contractor had left the work, such records, being offered as a whole in an action against the contractor's surety, were properly excluded.

Motion for New Trial.

A. T. Freedley, for plaintiff.

John Hampton Barnes, for defendant.

J. B. MCPHERSON, District Judge. This controversy arises upon the following facts: In March, 1896, Patricius McManus entered into a contract with the plaintiff to dredge and widen a section of the Dismal Swamp Canal. He continued at work until the latter part of the year 1898, when, in consequence of disputes between him and the company, he gave up the contract. These disputes were settled by an agreement dated December 3, 1898, of which the following is the only passage that is now relevant:

"(3) The said McManus hereby further covenants and agrees to duly and promptly protect and save harmless the company [plaintiff] from all claims of any sort or description which may be advanced against the company by anyone on account of or by reason of work done or omitted to be done under the said contracts of March 23, 1896, and March 28, 1898, and at his own cost and expense to defend all suits which may be brought against the company on such claims."

The defendant became the surety of McManus upon this agreement, binding itself for "the prompt and faithful performance of all the covenants, warranties, and agreements of Patricius McManus as set forth in the foregoing contract." During the period between June 29, 1900, and May 25, 1901, eight suits were brought against the canal company in North Carolina by owners of land bordering upon the canal along the section where McManus had been at work. In these suits it was charged that the canal company, its agents, employés, and contractors, deposited large quantities of mud, sand, and water upon the lands of the plaintiffs, filled up the drainage ditches, and caused water to accumulate or pond upon the surface, thereby injuring the productive capacity of the soil, and doing much damage both to the annual crops and also to the freehold. Recovery was had in each case, the judgments were affirmed by the Supreme Court of North Carolina, and an aggregate sum of more than $10,000 was paid by the canal company in satisfaction of the claims. Both McManus and the defendant were notified of the suits as they were brought, and were asked to defend them, but these requests were either ignored or refused. The present suit is brought to recover from the surety the sums thus paid by the defendant, the averment being that all these suits were founded upon the negligent or other improper conduct of McManus, and that he had bound himself by the agreement of December 3, 1898, to save the canal company harmless from all litigation that might grow out of work done by him. At the trial the plaintiff offered in evidence certified copies

of the North Carolina records, but they were excluded by the court, and this exclusion is the principal subject of complaint under the present motion.

It is undoubtedly true that under the facts above stated the records would have been not only evidence, but conclusive evidence, against the surety (Washington Gas Co. v. District of Columbia, 161 U. S. 329, 16 Sup. Ct. 564, 40 L. Ed. 712), if they had disclosed with sufficient certainty that the suits were founded upon the negligent or other improper conduct of McManus. The difficulty, in my mind, during the trial, however, was that they did not show with the needful precision this important fact. McManus' name does not appear in them at all; neither is he so described as to be definitely pointed out. The acts complained of are described as the acts of the canal company, its agents, employés or contractors, and the only way in which McManus can be connected with the injuries is by other evidence in the case, coupled with the averment in five of the records that the harm was done when the canal was being widened in 1898. Even this help is not to be found in three of the records--the suits of Norris, Burnham, and Edney-for in each of these cases the injury is averred to have been done in part during the year 1899, after McManus had retired from the work, and the company alone was carrying it on. These records afforded no means of separating the damage done in the year 1899 from the damage done in 1898, the judgments being for lump sums; yet for the first item McManus could not be held liable. So, also, with regard to the items making up the sums recovered. In several of the cases it affirmatively appears that awards were made for damages to the crops of 1899, 1900, and 1901, for which the canal company would be liable, if the injury was done by its failure to open the drainage ditches that McManus may have left filled up; and this is specifically charged against the company as one of the grounds for recovery. Surely, if the canal company found that a nuisance had been left on its hands by McManus, it was bound to abate it, and if it failed to do so, and thereby became liable in damages, it cannot recover such damages from the person who may have been equally guilty of the wrong. Because of this lack of definiteness and precision in the records, they did not seem to me to be competent, and I am still of the same opinion.

I may add that the records were offered as a whole, and the ruling of the court was upon them as a whole, and not separately. The motion for a new trial is refused.