Opinion
No. 3281.
April 29, 1932.
Petition by the Baltimore Ohio Railroad Company and another, for writ of mandamus to be directed to the Hon. William E. Baker, United States District Judge for the Northern District of West Virginia.
Petition denied.
George M. Hoffheimer, of Clarksburg, W. Va. (Eugene S. Williams and Charles R. Webber, both of Baltimore, Md., and E.A. Bowers, of Elkins, W. Va., on the brief), for petitioners.
George T. Bell, of Washington, D.C. (Samuel T. Spears, of Elkins, W. Va., on the brief), for respondent.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
This is a petition for an order requiring the District Judge to show cause why a writ of mandamus should not issue requiring him to sign a bill of exceptions. It appears from the face of the petition that no bill of exceptions was tendered to him until after the term at which the case was tried had expired, and that no order was entered extending the term for the purpose of settling and signing same. The only excuse offered for failure to have the bill settled within the term is the delay of the stenographer in furnishing a transcript of the evidence, and belief on the part of counsel for appellant that counsel for appellee would not object to the settlement of the bill after the expiration of the term. It is clear that the petition must be denied. Exporters of Mfrs.' Products v. Butterworth Judson Co., 258 U.S. 365, 369, 42 S. Ct. 331, 66 L. Ed. 663; Krauss Bros. v. Mellon, 276 U.S. 386, 48 S. Ct. 358, 72 L. Ed. 620; Osborn v. U.S. (C.C.A. 4th) 50 F.2d 712; Goetzinger v. Woodley (C.C.A. 4th) 17 F.2d 83; United States v. Konstovich (C.C.A. 4th) 17 F.2d 84; In re Bills of Exceptions (C.C.A. 6th) 37 F.2d 849; Tramel v. U.S. (C.C.A. 8th) 56 F.2d 142. Rule 14 of the District Court, which provides that all matters pending at the close of a term and not otherwise disposed of shall stand continued as of course to the next term without formal order, manifestly has no application. The settling of the bill of exceptions was not a matter pending at the end of the term, even if such a matter could be held to be within the rule.
Petition denied.