DANIELSON fl. NORTHWESTERN FUEL CO.
DANIELSON v. NORTHWESTERN FUEL CO. (Circuit Court, D. Minnesota, Fifth Division. February 15, 1893.)
Where a motion for a new trial is made and duly filed with leave nfter judgment is entered, according to the practice of some districts, the judgment does not become final, so as to authorize the issuance of execution, until the motion is disposed of. Where an order denying a motion for a new trial is sib'lled by the judge at chambers, in vacation, it does not become effective, so as to render the judgment final, until the order is filed of record in the clerk's office.
Under Rev. St. § 1007, providing that until the expiration of 10 days an execution shall not issue "in any case where a writ of error may be a supf'rsedeas," Sundays Ilre to be excluded in the computation of time.
At Law. Action by Karl Danielson against the Northwestern Fuel Company. Hearing on motion to quash an execution. Granted. Statement by NELSON, District Judge:
'I'he judgment in this cause was enterro in the fifth division of this district October 17, 1892, and on that day an order was entered, staying the of execution thpreon, and a motion was made, before the stay expired, for a new trial. This motion was heard at chambers. and taken under advisement, and on January 18, 1893, an order was signed by the judge, denying said motion, which onler "'as sent to the clerk's office of the court in the fifth division for record, lind was filed and entered of record therein on January 21, 18!:l3. On January 30, 1893, an execution was issued by the clerk, but retained by him till January 31, 1893, and was received by a deputy United States marshal on the same day, but no levy was made, under and by virtue of the same, until February 2, 1893. On the 2d day of February aforesaid a citation was duly issued, a writ of error duly filed, and a supersedeas bond duly approved and filed. A bill of exceptions had been settled, signed, nud filed before the latter day. A mot.ion is now Ill''.ll(' to quash the execution, and set aside all proceedings that may have been done under the same.
Draper. Davis & Hollister, for the motion. John W. Arctander, opposed. NELSON, District Judge, (after stating- the facts.) No execu· tion could issue until a final judgment is J·endered. The judgment became final at the time when the motion for a new trial was determined. See Woods v. Lindvall, 48 Fed. Rep. 73, 1 C. C. A. 34. Although the order denying the motion for a new trial was signed by the judge in vacation, and at chambers, upon January 18, 1893, it was not effective, so that the judgment became final, until the order was filed of record in the clerk's office in the division in which the judgment was entered, which was on January 21, 1893. Under section 1007, Rev. St. U. S., as interpreted by the United States supreme court, (Doyle v. Wisconsin, 94 U. S. 52,) the legisla· tive intent is to be determined by looking at the old law as it existed before the revision; and when this is done it is found that, until the expiration of the term of 10 days, "execution shall not issue in any Castl where a writ of error may be a supersedeas;" and the term of v.55F.no.1-4
10 days also excludes Sundays. See, also, Kitchen v. Randolph, 93 U. So 86, and Danville v. Brown, 128 U. S. 503, 9 Sup. Ct. Rep. 149. Motion to quash execution is granted.
BALTUIORE & O. R.
v. PAJtHETTJfl et al. :.Ylarch 10, 1893.)
(Circuit Court, S. D. Ohio, E. D.
EMINENT DOMAIN-PARTIES-RIGHTS (IF LESSEE.
A judgment conGC'mning lands for public lise does not affect a lessee's right of when he is not made a party.
RES JUDICATA-SUITS A'l' LAW AND IN EQUITY.
·Where a lessee who was not marle a party to condemnation proceedings brings suit to enjoin u city' from opening a street through the leased preillibes, a decree finding that the equitil's art> with the defendant, awl dismissing bill, does not bar the Jessee from maintaining a SUbsequent a.ction at law to assert his legal right of possession.
At Law. Action of ejectment by the Baltimore & Ohio Railroad Company against Thomas F. Parrette and others. Judgment for plaintiff. J. H. Collins, for complainant. Joseph Hidy and Ace Gregg, for respondents. SAGE, District Judge. This is an action in ejectment against Thomas F. Parrette, Lewis C. Mallow, and Henry Fulton, commissioners of Fayette county, Ohio, and against Addison Hays & N. B. Hall, partners as Hays & Hall, to recover possession of a strip of land 28 feet wide and 50 feet long, on the southwest side of the complainant's main track, a short distance northeast of its passenger depot at Washington court house, Fayette county, Ohio. The petition was filed on the 23d day of August, 1892. It sets forth that the defendants, on or about the 14th day of August, 1892, in the night season, entered upon said strip of land, and erected thereon a wooden structure of trestles, sills, :flooring boards, and other material of similar character; that said entry was unlawful, wrongful, and without any right or title; and that they had remained in possession and were in possession thereof. The plaintiff, setting up its own title and right of p.osseession, prays for judgment. The defendants deny the complainant's ownership, and its right to the exclusive possession of said property, or that they have remained in possession of said premises ever since the 14th day of August, 1892, or that they were in the possession of the same on the 23d day of August, 1892, or have been at any time since that date, or that they.have kept plaintiff out of possession. They admit that the plaintiff has a limited and qualified ownership in the premises, and that the defendants, on the 14th day of August, 1892, entered upon the same, and erected thereon a bridge across Paint creek; but they deny that the entry was unlawful or wrongful, and assert their full right to do what they did do. They further