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U.S. Supreme Court

Old Nick Williams Co. v. United States, 215 U.S. 541 (1910)

Old Nick Williams Co. v. United States

No. 26

Argued November 9, 10, 1910

Decided January 24, 1910

215 U.S. 541


A writ of error is not actually brought until filed in the court which rendered the judgment, and the same rule is applicable to appeals. Credit Company v. Arkansas Central Railway, 128 U. S. 261.

The statutory time for taking appeals from one federal court to another is prescribed by act of Congress, and must be calculated accordingly; it cannot be extended by order of the court.

Assignment of errors does not require the previous settlement of the bill of exceptions, and failure to file the writ within the statutory time is not excused because there was delay on the part of the trial judge in settling the bill.

Assignment of errors is not a jurisdictional requirement, and, although by the rule errors not assigned are disregarded, the court, at its option, may notice a plain error not assigned or specified.

152 F.9d 5 affirmed.

This was an indictment in the District Court of the United States for the Western District of North Carolina against the Old Nick Williams Company, a corporation which was authorized to carry on the business of a rectifier, and which was convicted of violating the second paragraph of § 3317 of the Revised Statutes by the verdict of a jury finding it guilty of carrying on the business of a rectifier with intent to defraud the United States of the tax on the spirits rectified by it. The verdict was rendered November 28, 1905, and motions to set aside the verdict and for new trial and in arrest of judgment were severally made and overruled, and thereupon judgment was entered on that day, sentencing defendant to pay a fine of $5,000 and be taxed with the costs. On the same day, it was ordered that the defendant have ninety days to prepare its bill of exceptions, and that the attorney for the United States have

Page 215 U. S. 542

thirty days, after being served with the defendant's bill of exceptions to make objections thereto, and that the court would settle the bill of exceptions upon ten days' notice to the attorneys of the parties, and that, when filed, the bill of exceptions should be deemed as made in ample time.

January 17, 1906, by consent of the parties, the court, by its order, further extended the time for preparing and filing defendant's bill of exceptions to March 15, 1906, and afterwards extended the time to April 1. On July 27, 1906, the court, over the objection of the attorney for the United States, made an order which recited that defendant had filed with the clerk its bill of exceptions, to which the United States attorney had filed certain objections and proposed amendments, so that the bill of exceptions had not been settled and signed by the court within six months from the date of the entry of the judgment, and the court, being of opinion that defendant was entitled, under the circumstances, to have the bill of exceptions settled and a writ of error and citation issued and served nunc pro tunc as within the time required by law, directed that the attorneys should appear before him August 7, 1906, and have the bill of exceptions settled and signed by the court, and further ordered that, when the bill of exceptions was settled and signed, and after a petition for a writ of error and assignments of error had been filed by defendant, the writ of error and citation in due form should be issued and served, all to bear date as of the fifteenth of April, 1906, that being the date on which the defendant filed its proposed bill of exceptions with the clerk, and which was within six months from the entry of the judgment. Thereafter, on September 12, 1906, defendant, having presented its petition for the allowance of a writ of error and its assignment of errors, the court signed an order allowing the writ of error, and directing that the writ of error and citation, when issued, bear date April 15, 1906. Thereupon the writ of error was issued on September 12, 1906, as of April 15. The attorney for the United States moved to dismiss the writ of error because not sued out within six months after the entry of

Page 215 U. S. 543

the judgment. The statute restricting the time for writs of error in such cases is § 11 of the Act of Congress of March 3, 1891, and reads:

"SEC. 11. That no appeal or writ of error by which any order, judgment, or decree may be reviewed in the circuit court of appeals under the provisions of this act shall be taken or sued out except within six months after the entry of the order, judgment, or decree sought to be reviewed."

The writ was dismissed for the reasons given in the opinion by Morris, J., reported in 152 F.9d 5.

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