Page:Federal Reporter, 1st Series, Volume 1.djvu/466

 458 FEDERAL REPORTER. �if he makes his motion for a new trial without asking for the time, then he can make it independent of section 987, and is not bound by the provisions of that section. In other words, the court had a perfect right to entertain the motion for a new trial; it did entertain it, and suspended the execution until it shonld be determined. �Now the judgment cannot be said to have been finallyren- dered until the determination of the motion for a new trial in this case. That is very clear, when it is considered that the motion might have been sustained as well as overruled, and in that case the effect of the action of the court would have been as if there had been no judgment, or it had been the other way. And, if the doctrine contended for by the plaintiff should be sustained, it might resuit that there would be a case pending in the supreme court on appeal from a judgment which was never rendered, in point of fact, in this court. The construction of section 987 will illustrate what I have said upon this point. Under that section, where a party applies for time to file his application for a new trial, the motion, as you will perceive, may be granted at the next term ; and the extension shall, of course, be further stayed until the next session of the court, if the party is allowed to file his petition. Now, suppose in the meantime he has taken his writ of error and gone to the supreme court, and bas obtained, perhaps, a hearing and decision in the supreme court, and after ail that a motion for new trial comes up in the court below and is sustained. �It is manifest that such is not the intention ; in other words, it would be an anomaly to provide for an appeal or writ of error from a suspended or inoperative judgment. I think it is fair, although it is a liberal construction of the statute, to say that the time begins to run from the day when the motion for a new trial is overruled ; and that is the construc- tion I give it in a case where the application has been made in time, and execution suspended. Of course, if I am wrong, a motion to set aside the supersedeas can be made in the supreme court, I apprehend, and the question there be finally determined. ��� �