DOWLING et al. v. UNITED STATES

DOWLING et al. v. UNITED STATES. Circuit Court of Appeals, Sixth Circuit. January 16, 1928. No. 4878. New trial <§=>168 — Appellate court may consider merits of motion for new trial, on ground that to perfect record had become impossible because of reporter’s death, refused consid- ' eration below because of pending writ of error. Where a motion for new trial was on the ground that it had become impossible by reason of reporter’s death to perfect a record for review, and the trial court refused to entertain the motion because writ of error had issued, the appellate court may consider the merits of the motion. On application for rehearing. Denied. For former opinion, see 22 F.(2d) 364. Before DENISON, Circuit Judge, and HICKENLOOPER and RAYMOND, District Judges. [MAJORITY — PER CURIAM.] PER CURIAM. An application for rehearing calls attention to some errors in fact-recitals of the opinion; these errors should be corrected. Mrs. Dowling’s residence was in the nearest town, some three miles from the distillery. The defendants’ motion for a new trial because of the reporter’s death was overruled, upon the ground that the writ of error had issued, and the trial court had lost jurisdiction to grant a new trial. The offer of the trial judge to prepare and submit a bill of exceptions was made by him in connection with the denial of defendants’ later motion to certify to this court the fact of the loss of the stenographer’s notes as a substitute for an ordinary bill of exceptions. These corrections do not change the substance of things nor affect the result. The jurisdiction Of the District Court to settle a bill of exceptions continued, .in spite of the writ of error, until after the time at which the specified offer by the judge was made. Defendants are perhaps right in saying that their motion for a new trial on this ground should be heard and decided on its merits in one court or the other, and we see no obstacle to entertaining it, as they have now presented it, as a motion in this court which we may hear as reasonably aneilliary to our appellate jurisdiction invoked by the writ of error. The motion being thus before us, we deny it, for the reasons stated in our opinion. The rehearing application is denied.