A-29613, DECEMBER 18, 1929, 9 COMP. GEN. 253

A-29613: Dec 18, 1929

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WITHIN WHICH THERE MAY BE REVIEW OF JUDGMENTS OF THE CIRCUIT COURT OF APPEALS BEGINS TO RUN FROM THE DATE THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS WAS ENTERED AND NOT FROM THE DATE THE MANDATE OF THE CIRCUIT COURT OF APPEALS WENT TO THE DISTRICT COURT NOR THE DATE THE DISTRICT COURT ENTERED JUDGMENT IN ACCORDANCE THEREWITH. IT WAS STATED IN SAID LETTERS OF NOVEMBER 5 AND 13. WHEN THERE WAS FILED THE OPINION OF THE CIRCUIT COURT OF APPEALS. IT IS STATED IN 4 FOSTER. THAT THE JUDGMENT OF THE APPELLATE COURT "IS EMBODIED IN A MANDATE WHICH IS SENT DOWN TO THE COURT WHOSE PROCEEDINGS HAVE BEEN REVIEWED BY WRIT OF ERROR OR APPEAL. OR ORDER IS ACTUALLY ENTERED. WHEN THE JUDGE'S SIGNATURE IS REQUIRED.

A-29613, DECEMBER 18, 1929, 9 COMP. GEN. 253

PAYMENTS - JUDGMENTS - APPEAL PERIOD WITH RESPECT TO PAYMENT OF A JUDGMENT, THE THREE MONTHS' PERIOD PROVIDED IN THE ACT OF FEBRUARY 13, 1925, 43 STAT. 940, WITHIN WHICH THERE MAY BE REVIEW OF JUDGMENTS OF THE CIRCUIT COURT OF APPEALS BEGINS TO RUN FROM THE DATE THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS WAS ENTERED AND NOT FROM THE DATE THE MANDATE OF THE CIRCUIT COURT OF APPEALS WENT TO THE DISTRICT COURT NOR THE DATE THE DISTRICT COURT ENTERED JUDGMENT IN ACCORDANCE THEREWITH.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 18, 1929:

BURDEN-SMITH AND CO., MACON, GA., THROUGH THEIR ATTORNEYS, REQUESTED NOVEMBER 16, 1929, REVIEW OF THE ACTION TAKEN BY THIS OFFICE IN LETTERS DATED NOVEMBER 5 AND 13, 1929, IN REFUSING TO CERTIFY FOR PAYMENT, UNDER THE ACT OF FEBRUARY 18, 1904, 33 STAT. 81, AS AMENDED, THE JUDGMENT ENTERED OCTOBER 3, 1929, BY THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ON A MANDATE DATED SEPTEMBER 23, 1929, OF THE UNITED STATES CIRCUIT COURT OF APPEALS, AFFIRMING ITS JUDGMENT IN THE CASE OF BURDEN-SMITH AND COMPANY V. UNITED STATES, FOR $8,196.52, WITH INTEREST, AS TAXES ERRONEOUSLY ASSESSED AND COLLECTED. IT WAS STATED IN SAID LETTERS OF NOVEMBER 5 AND 13, 1929, THAT THE 90 DAYS' PERIOD WITHIN WHICH APPLICATION MIGHT BE MADE UNDER THE ACT OF FEBRUARY 13, 1925, 43 STAT. 936, 942, BEGAN TO RUN FROM THE DATE OF THE ENTRY OF JUDGMENT BY THE DISTRICT COURT ON THE MANDATE OF THE CIRCUIT COURT OF APPEALS, WHEREAS THE ATTORNEYS FOR THE CLAIMANT CONTEND THAT SUCH PERIOD BEGAN TO RUN FROM JUNE 22, 1929, WHEN THERE WAS FILED THE OPINION OF THE CIRCUIT COURT OF APPEALS, AFFIRMING THE JUDGMENT BELOW.

IT IS STATED IN 4 FOSTER, FEDERAL PRACTICE, PAGE 3904, SECTION 712, THAT THE JUDGMENT OF THE APPELLATE COURT "IS EMBODIED IN A MANDATE WHICH IS SENT DOWN TO THE COURT WHOSE PROCEEDINGS HAVE BEEN REVIEWED BY WRIT OF ERROR OR APPEAL," AND PAGES 3782-3784, SECTION 698 THAT---

* * * THE TIME DOES NOT BEGIN TO RUN TILL THE JUDGMENT, DECREE, OR ORDER IS ACTUALLY ENTERED, OR FILED, AND WHEN THE JUDGE'S SIGNATURE IS REQUIRED, NOT TILL IT IS SIGNED, ALTHOUGH IT IS DATED AS OF A PRIOR DAY. A DECISION CONTAINING DIRECTIONS FOR A DECREE IS NOT CONSIDERED AS A DECREE. WHEN THE ORDER OF JUDGMENT OR DECREE IS AMENDED, IT SEEMS THAT THE TIME BEGINS TO RUN ANEW FROM THE DATE OF THE AMENDMENT. IF A PETITION FOR A REHEARING IS DULY FILED OR A MOTION FOR A NEW TRIAL DULY MADE, OR A MOTION TO SET ASIDE THE JUDGMENT MADE DURING THE TERM, THE TIME DOES NOT BEGIN TO RUN UNTIL THE PETITION OR MOTION HAS BEEN DENIED; AND AN APPEAL ALLOWED BEFORE THE PETITION OR MOTION IS MADE, BUT NOT PERFECTED TILL AFTERWARDS, IS CONSIDERED AS NOT PENDING TILL IT IS PERFECTED. THE DAY ON WHICH THE ORDER, JUDGMENT, OR DECREE WAS ENTERED IS EXCLUDED FROM THE COMPUTATION OF THE TIME. IT HAS BEEN HELD THAT WHEN THE LAST DAY OF THE LIMITED TIME FALLS ON A SUNDAY THE WRIT OR APPEAL CAN NOT BE TAKEN ON A SUBSEQUENT DAY. THE TIME TO APPEAL OR TO SUE OUT A WRIT OF ERROR CANNOT BE EXTENDED BY THE COURT BY AN ORDER PERMITTING IT TO BE FILED NUNC PRO TUNC OR OTHERWISE.

THE ACT OF FEBRUARY 13, 1925, CITED, RESTRICTED THE REVIEW OF ALL JUDGMENTS, EXCEPT A LIMITED NUMBER NOT HERE MATERIAL, TO THE APPROPRIATE CIRCUIT COURT OF APPEALS, WITH THE REQUIREMENT THAT SUCH APPELLATE PROCEEDINGS BE COMMENCED WITHIN 90 DAYS FROM THE DATE OF THE JUDGMENT OF THE DISTRICT COURT, AND NO JUDGMENT OF THE CIRCUIT COURT OF APPEALS MAY BE REVIEWED IN THE SUPREME COURT OF THE UNITED STATES UNLESS APPLICATION THEREFOR IS MADE WITHIN THREE MONTHS "AFTER THE ENTRY OF SUCH JUDGMENT OR DECREE.' THAT IS TO SAY, THE JUDGMENT OF THE DISTRICT COURT OF THE UNITED STATES IN SUCH A CASE AS ONE FOR REFUND OF TAXES MAY BE REVIEWED ONLY IN THE APPROPRIATE CIRCUIT COURT OF APPEALS, AND THE REVIEW OF THE CIRCUIT COURT OF APPEALS PROCEEDINGS IS OBTAINABLE ONLY BY THE GRANTING OF A WRIT OF CERTIORARI IF AND WHEN APPLICATION THEREFOR IS MADE TO THE SUPREME COURT OF THE UNITED STATES "WITHIN THREE MONTHS AFTER THE ENTRY OF SUCH JUDGMENT OR ECREE" IN THE CIRCUIT COURT OF APPEALS.

THE QUESTION HERE INVOLVED IS WHETHER THE THREE MONTHS' PERIOD OF REVIEW OF THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS BEGINS TO RUN FROM JUNE 22, 1929, THE DATE OF THE FILING OF THE OPINION, OR FROM THE DATE OF THE MANDATE OF THE CIRCUIT COURT OF APPEALS TO THE DISTRICT COURT. AND THIS QUESTION SEEMS TO HAVE BEEN DETERMINED BY THE SUPREME COURT OF THE UNITED STATES IN BOYLON ET AL V. UNITED STATES, 257 U.S. 614, WHEREIN THE PER CURIAM OPINION IS AS FOLLOWS:

DISMISSED FOR WANT OF JURISDICTION, DUE TO FAILURE TO APPLY FOR WRIT OF ERROR WITHIN THE STATUTORY PERIOD WHICH BEGAN WITH THE DATE OF THE ENTRY OF THE FINAL JUDGMENT OF THE CIRCUIT COURT OF APPEALS TO WHICH THE WRIT OF ERROR ISSUED, AND NOT WITH DATE OF THE ENTRY OF THE JUDGMENT IN THE DISTRICT COURT UNDER THE MANDATE OF THE CIRCUIT COURT OF APPEALS. ACT OF SEPTEMBER 6, 1916, C-448, SECTION 6, 39 STAT. 726, 727. * * *

THE DATE OF ENTRY OF THE FINAL JUDGMENT OF THE CIRCUIT COURT OF APPEALS IN THIS CASE WAS JUNE 22, 1929, AND THREE MONTHS FOR FURTHER PROCEEDINGS IN THE SUPREME COURT OF THE UNITED STATES BEGAN TO RUN FROM THAT DATE AND NOT FROM THE DATE WHEN THE MANDATE WAS ISSUED TO THE LOWER COURT, NOR WHEN THE LOWER COURT ENTERED JUDGMENT ON THE MANDATE. SEE POLLEYS V. BLACK RIVER COMPANY, 113 U.S. 81, AND RADFORD V. FOLSOM, 131 U.S. 392.

THE PERIOD FOR FURTHER REVIEW OF THE JUDGMENT HAVING EXPIRED, SETTLEMENT OF THE JUDGMENT WILL BE MADE FORTHWITH UPON THE FILING BY THE CLAIMANT IN THIS OFFICE OF A CERTIFICATE FROM THE CLERK OF THE SUPREME COURT OF THE UNITED STATES TO THE EFFECT THAT NO APPLICATION FOR WRIT OF CERTIORARI IS PENDING OR HAS BEEN GRANTED IN THAT COURT FOR REVIEW OF THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS.