WOODS fl. LINDVALL.
whether Murdock and Lindvall were fellow-servants, but as that issuE' was, in our opinion, rightly determined by the jury, and submitted to them under proper directions, the seventh assignment of error is untenable. The judgment of the court below is affirmed. HALLETT, J., dissents.
0/ Appeals, Eighth Ctl'cuu. October Term, 189L)
BILL OJ' EXOEPTIONS-TIMB 0"1 FILING.
In those districts where the custom prevaUs of entering judgment Immediately upon the rEinditlou of the verdict a bill of exceptions may be allowed and filed at the term in which the motion for a new trial is determined, although such action is taken at a term subsequent to the entry 'of jUdgment, and there fa DO order ex1 tending the time for allowing and ftling the bilL _ . ,
In Error to the Circuit Court of the United States for the District of Minnesota. This is a motion to strike the bill of exceptions from the record for the alleKed reason that it was not filed in time to become a part of the record. The case appears to have been tried at the January term, 1891, of the circuit court for the third division of the district of Minnesota. 44 Fed. Rep. 855. The verdict was returned on February 11, 1891, and on the same day judgment was entered on the verdict according to the usual practice in that district. On the following day, pursuant to section 987, Rev. St. U. S., plaintiffs in error asked; and obtained a stay of execution for 42 days, to enable them to file a petition for a new trial. During the January term, and within the 42 days, such petition for a new trial was filed, but the January term adjourned sine die before the motion was heard or determined. At the succeeding June term, 1891; the petition for a new trial was argued and overruled, and at the same term, to-wit, July 30, 1891, a bill of exceptions was signed, sealed, and filed. The defendant in error duly objected to the allowance of the bill because the trial term had expired. It further appears that no order was entered at the January term, 1891, expressly extending the time for filing the bill to the June term, 1891, nor was any consent giveI1 that it might be so filed. John M. Shaw and W. R. Cray, for plaintiffs in error. John W. Arctander, for defendant in error. Before CALDWELL, HALLET, and. THAYER, JJ. THAYER,J. t (after Btating the facts as above.) We are all agreed the motion to strike out the bill of should be overruled. It is true that in several· cases cited by couDsel for defendant in to--wit, Walton v. U. 8., 9 Wheat. 651; Fa parte B1'ad8treet, 4 Pet. 102,
and MullRrv.Ehler8, 91 U. S. 249 j ....;.it was held ioeffect that, in the absence '. of an order of court extending the time, a bill of exceptions coveriilg errors committed at the trial cannot be allowed and filed (unless by consent of partiesYafter the term hns.expired at which the judgment was rendered. But in none of these cases did the question filed at the arise whether a bill of exceptions may not be allowed. term when the motion for a new trial is finally acted on, even though such action is taken at a term subsequent to the entry ofjuogmentj and that is the precise question which confronts us in the case at bar. The authorities cited are either cases in which no motion for a new trial was filed, or in which the bilLof exceptions was presented after the lapse of the term at which the motion for a new trial was overruled. According to well-established principles, therefore, the judgments'involved had become final at a term preceding that at which a bill of exceptions was tendered. Since the decision in v. ImuranpeCo., 1 Fed. Rep. 456, we believe the practice has been uniform in aU the districts of this circuit, where the custom prevaIls, cjf entering judgmeJit,immediately on the rendition of verdict, to allOw's. biB of exceptions·du'ring the term at which the motion for a new trial is overruled, even though it happens to be aterinsubaequent to the entry ofjudgment. This practice, according to our Observation, has become so common that it may be termed a rule of procedure iIi this circuit. It: ,is' 81 convenient praotice. It obviates the necessity of settling a bill of,exceptions at the,trial term, which is useless labor if a motion for a new trilllis continued to and is sustained at the succeeding term.' And in these days, when it is customary to take notes of trial proceedings in short-hand, the "practice in question is riotOpElD to thoseobjeotions formerly urged .against it. We are of the opinion, therefore, that the practice which has hitherto obtained in many districts of the circuit should be upheld unless it is overborne by controllingauthority,.and we find no such authority. On the contrary, we think the rule requiring bills of exception to be filed at the term when judgment is rendered must be understood to mean, the term when the judgment becomeil final, and by reason of its- becoming final the court loses control of the record. '. It haaheen held several times that, if a motion fora new trial is duly filed by leave at the trial term, the judgment does not become final until such'tnCltion is determined. RuHlCrford v. BrOIJJn v. Evatitr,8 Sawy. 502, 17 Fed. Rep. 912; Railway Murphy, 111 U. S. 488, 4 Sup. Ct. Rep. 497; Bl"Ockett v. Brockett, 2 How. 238; Memphiav.Brown, 94 U; ·S. 716,717; Slaughter-House Caaes, 10 Wall. 289. In some of the state courts. also, the precise question·of pra<ltice now before us has been determined adversely to the defendant in error. Thus,undel'a statute oNhestate of Missouri requiring all exceptions-to· be filed dUring the tertn·atwhich they were taken, and all exceptions during the trial of a cause to be embraced in ;one bill, it has been field that the ora; motion for a new trial from the trial term to a succepditig term keeps the record open, prevents the Judgment from becoming final, and enables the court to allow a bill ofexceptions during the·ter.m:atwhich th.e motion is finally deter-
mined., Riddlea'bargcr v. McDaniel, ,88 Mo. 138; Henze v. Railroad 0'0., 71 Mo. 636, 644. See, also, Bank v. Steinmitz,65 Cal. 219, 3 Pac. Rep. 808. We hold, therefore, that the bill of exceptions in the present case was properly allowed and filed, and we accordingly overrule the motion to expunge it from the record.
(Clrcuit C01lf't oj AppeaI8, Eighth
Cmourr CoURT OP .A1'PBAL8-HAllBAS CORPIJ8-ExTRATBRRITOBIAL JIJBISDIOTIOlf.
A circuit court of appeals has no jUrisdiction, in the absenC80f a statute express1,J authorizing to award a writ of habeas COT1JU8 to be served outside of the oiroui$ for whioh it SIts, to secure the release of a person there held in custody. The court is not autborizedto award sucb writ on tbe ground that its appellate jUrisdiction is invoked therein to revise the decision of the distriot court of a territory within its oircuit under whose process petitioner was confined; for by section 15, Act Congo March 8, 18111, creating tbe circuit COUrts of appeala, their appellate jurisdiction over territorial courts iB lirn1ted to the supreme courts of tbe territoJU,BISDICTION-TBRRIWRUL DISTRICT CoIJBTS. ,
This is an application for a writ of haben8 corpUs, to release from prisontnent one W. H. Boles, who is now, as it is said, confined in the Ohio state penitentiary at Columbus, Ohio, under a sentence imposed by the district court Of Logan county, territory of Oklahoma, at its adjourned September term, 1890. The petition for the writ charges that the court before whom the petitioner was tried, convicted, and sentenced for horse-stealing had no jurisdiction of the offense for which he was tried, and that the sentence imposed was for that reason void. It also states in detail the several facts that ,are supposed to have rendered the proceedings of the district court utterly nugatory and void, but the view that we take of the case renders it unnecessary to recite such facts. A writ is sought against B. F. Dyer, warden of the state penitentiary. he being the person who now has petitioner in custouy. Ira C. Terry; for petitioner. Get). D. Reynolds, U. S. Dist. Atty · Before CA.LDWELL, HALLETT, and THAYER, Jl.
THAYER, J., (after Btating thefact8 as above.) It will be observed that we are asked to award a writ of habeas corpus to be served at a place outside of the territorial jurisdiction of this court, for the purpose of securing the release of a person who is there confined, and we are of the opinion that we have no authority to award such a writ. It certainly cannot be maintained that this court has power to release persons who are unlawfully restrained of their liberty in any part of the United States under color of process of a federal court, as the supreme court may do, yet such would be the assertion of jurisuiction on oqr part, if we granted