Montgomery Ward & Co. v. Banque Belge Pour L'Etranger , 298 F. 446 ( 1924 )

RUDKIN, Circuit Judge

(after stating the facts as above). [1] From the foregoing statement it is apparent that the motion "to dismiss is well taken, unless the time for suing out a writ of error was suspended by the filing and the-pendency of the motion for a new trial. If a motion for a new trial, or petition for a rehearing, is made or presented in season, and entertained by the court, the time allowed for writ of error or appeal does not begin to run until the motion or petition is disposed of. Until then, the judgment or decree does not take final effect for the purposes of the writ of error or appeal. Kingman v. Western Manufacturing Co., 170 U. S. 675, 18 Sup. Ct. 786, 42 L. Ed. 1192. The motion for a new trial, in this case, was not filed until upwards of 3% months after final judgment. The plaintiff in error contends, however, that this was in season and timely. The contention is based on certain rules applicable to the United States consular courts for China, authorizing the granting of a new trial for certain causes within one year after final judgment, and on section 4 of the Act Creating the United States Court for China, which provides as follows:

“The jurisdiction of said United States court, both original and on appeal, in civil and criminal matters, and also the jurisdiction of the consular courts in China, shall in all cases be exercised in conformity with said treaties and the laws of the United States now in force in reference to the American consular courts in China, and all judgments and decisions of said consular courts, and all decisions, judgments, and decrees of said United States court, shall be enforced in accordance with said treaties and laws. But in all such cases when such laws are deficient in the provisions necessary to give jurisdiction or to furnish suitable remedies, the common law and the law as established by the decisions of the courts of the United States shall be applied by said court in its decisions and shall govern the same subject to the terms of anv treaties between the United States and China.” 34 Stat. 815 (Comp. St. § 7690).

The court below found:

“The motion for a new trial was evidently an afterthought, never contemplated until discovery that the time for a supersedeas had expired, and resorted to on the theory that a new appellate proceeding could be predicated upon the denial of such motion, and a supersedeas obtained within 60 days from such denial.”

It is questionable, at least, whether such a motion, filed for such a purpose, would suspend the time for suing out a writ of error. If the contention is sound, a litigant in the court below may file a motion for a new trial at any time before the expiration of a year from final judgment, or six months after the expiration of the time allowed by law for suing out a writ of error from this court. But the question is no longer of importance, since the court below has now by rule prescribed the time within which a motion for a new trial must be filed. We deem it therefore unnecessary to pass definitely on the motion to dismiss, as the same result will be accomplished through an affirmance of the judgment.'

[2, 3] The principal contention of the plaintiff in error is that Till-son made a pledge of the property of his principal to secure a personal-loan to himself. That this could not be done, of course, is elementary. The difficulty with the contention is that it is not supported by the evidence. The court below found that the goods in question were the property of the United States Import & Export Company, not the property of the plaintiff in error, and this finding is supported by the testimony. If the goods were, in fact, the property of the United States Import & Export Company, the authority of Tillson to transfer them as collateral security for a loan to himself is not and cannot be questioned; and if the property belonged to the United States Import & Export Company, the transfer by Tillson was a valid one, and the use of the name of the plaintiff in error in connection with the transfer may be rejected as surplusage.

[4] The goods may have been obtained by Tillson from his principal through fraud, as claimed, but that could not affect the rights of an innocent party who took a transfer of the goods as collateral security, for a valuable consideration, in good faith and without notice of the fraud.

The judgment of the court below is affirmed.