Reed v. Anderson

TRIEBER, District Judge.

The appeal in this case was granted and filed in the office of the clerk of the District Court on August 17, 1915. The supersedeas bond was approved and filed August 27, 1915, but no assignment of errors was filed until September 25, 1915. On that day counsel for appellant filed a motion to have the assignment of errors filed nunc pro tunc as of August 17, 1915, the day the appeal was granted. A hearing was had on this motion, and by the court denied.

In view of the settled rule of this court the merits of this case are not before us. In Webber v. Mihills, 124 Fed. 64 , 59 C. C. A. 578 , this court held:

“Attention has been sharply called to this rule (Rule 11, C. C. A., Eighth Circuit [ 91 Fed. vi , 32 C. C. A. lxxxviii ]) 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 an unexpected application of the rule [citing cases]. But in the later cases the rule has been steadily and uniformly enforced' [citing cases]. * * * 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.”

This rule has been steadily enforced by this court ever since. Lockman v. Lang, 128 Fed. 279 , 62 C. C. A. 550 ; Simpson v. First National Bank, 129 Fed. 257 , 68 C. C. A. 371 . The same practice prevails in other circuits. Mutual Life Ins. Co. v. Conoley, 63 Fed. 180, *346 11 C. C. A. 116 (Fourth Circuit); Mast & Co. v. Superior Drill Co., 154 Fed. 45 , 83 C. C. A. 157 (Sixth Circuit).

Had the assignment of errors been filed on or before the filing of •the supersedeas bond, it would have been sufficient. Simpson v. First National Bank, supra. But it was not filed until 29 days after the bond had been approved and filed.

The appeal must be dismissed; and it is so ordered.