Exporters of Manufacturers' Products v. Butterworth-Judson Company/Opinion of the Court

Asking instruction as provided by section 239, Judicial Code (Comp. St. § 1216), the Circuit Court of Appeals for the Second Circuit has sent up the statement and question which follow:

'This cause came here on a writ of error to a judgment in     favor of the Butterworth-Judson Company in an action at law      in the District Court for the Southern District of New York. Judgment resulted from the verdict of a jury and thereupon     plaintiff in error took a writ.

'The stated terms of the trial court as prescribed by act of     Congress begin each month on the first Tuesday thereof; but a      general rule of that court provides as follows: 'For the      purpose of taking any action which must be taken within the      term of the court at which final judgment or decree is      entered, each term of court is extended for ninety days from      the date of entry of the final judgment or decree.'

'In respect of this case the ninety-day period above provided     for, and therefore the term at which the final judgment in      question was entered expired on the 24th of February, 1920.

'On March 1, 1920, a written stipulation was executed between     the attorneys for the parties hereto in the words following:      'It is hereby stipulated and agreed by and between the      parties hereto that the November term of the United States      District Court for the Southern District of New York be      extended to April 6, 1920, for the purpose of settling and      filing the bill of exceptions herein.'

'On or before the 6th of April, 1920, but long after the 24th     of February, 1920, the plaintiff in error proposed a bill of      exceptions. Thereupon the trial judge, over the objection of     defendant in error and on the faith of the stipulation above quoted, settled and signed the bill of      exceptions annexed to the writ of error herein and now in      this court.

'Defendant in error then moved in this court for an order     striking from the record the bill of exceptions so settled as      above set forth, on the ground that the same had been      settled, signed and made a part of the record herein in      contravention of law, in that the term had expired.

'Upon consideration of this motion a question of law arises     concerning which this court desires the instruction of the      Supreme Court in order properly to decide the cause.

'Question Certified. Is the bill of exceptions so as above     set forth settled, signed and certified to this court in      contravention of law, in that the term had expired before the      same was offered for settlement?'

In the recent case of O'Connell v. United States, 253 U.S. 142, 146, 40 Sup. Ct. 444, 64 L. Ed. 827, we reaffirmed the doctrine announced in Michigan Insurance Bank v. Eldred, 143 U.S. 293, 298, 12 Sup. Ct. 450, 452 (36 L. Ed. 162)--

'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 case 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 an      end.' And, applying this rule, we held the bill of exceptions, signed by the trial judge after expiration of the time allowed by the rule of court, was no part of the record.

In the present cause the terms as extended had expired before any action concerning the bill of exceptions was taken by either court or counsel. In such circumstances the court had no power to approve it, unless this could be conferred by mere consent of counsel. This they could not do.

Consent of parties cannot give jurisdiction to courts of the United States. Railway Co. v. Ramsey, 22 Wall. 322, 327, 22 L. Ed. 823. The policy of the law requires that litigation be terminated within a reasonable time and not protracted at the mere option of the parties. See United States v. Mayer, 235 U.S. 55, 70, 35 Sup. Ct. 16, 59 L. Ed. 129. We think the better rule and the one supported by former opinions of this court requires that bills of exceptions shall be signed before the trial court loses jurisdiction of the cause by expiration of the term or such time thereafter as may have been duly prescribed. The certified question is accordingly answered in the affirmative.