Page:Federal Reporter, 1st Series, Volume 1.djvu/464

456 FKDEr.AL EPjPÛHTEB. �EUTHERFORD ». ThB PeNN. MuT. LiFE InS. Co. {Circuit Court, E. D. Missouri. March 12, 1880.) �PllACTICE — StrPEKSEBEAS — MOTION FOB A NEW TlilAL — SkCTION 1007, �Rev, St., Consthued. — A writ of error will operate as a supersedea.t. under section 1007 of the Rev. St., if duly servcrl "witliin 60 days, Sun- days exclusive," after a motion for a new trial lias been overruled, �A . R. Taylor, for plaintiff. �TF, H. Clopton, for defendant. �McCrary, J., (orally.) This case presenta a question of practice of some importance, in its application to this case as well as others; but it is one upon which I have no difficulty. The question is whether the defendant here has lost its right to a supersedeas on account of the delay which has occurred since the trial of the case. �The statute (Eev. St. § 1007) provides that "in any case where a writ of error may be a supersedeas, the defendani may obtain such supersedeas by serving the writ of error, by lodging a eopy thereoffor the adverse party in the clerk's office, where the record remains, within 60 days, Sundayw exclusive, after the rendering of the judgment eomplained of , and giving the security required by law on the issuiug of the citation. * * *" And the question arises upon the meaning of the words "within 60 days, Sundays exclusive, after the rendering of the judgment eomplained of." �I apprehend that the statute ought to be construed so as to commence the time from the final judgment. In this coiTrt there was a motion made for a new trial in this case, and the order of the court was made suspending the execu- tion until the determination of that motion. The motion for a new trial was made in pursuance of the right which is given by the statute in section 726. I have no doubt of the right of any party to have a motion for a new trial heard under this section : "AU of the said courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law." In the trial of causes it often happens that in the hurry of the trial questions arise which ��� �