This is a motion to dismiss a writ of error on the ground that the bill of exceptions was not presented and signed within the time fixed by the order of the District Court. Judgment was entered against the defendant on the 3d of August, 1917. In the absence of a fixed rule on the subject, the District Judge made an order allowing the defendant 30 days thereafter in which to present his bill of exceptions. On the 27th of August defendant’s attorney wrote to the plaintiff’s attorney, inclosing a proposed order for an extension of 10 days after the adjournment of the term of the court. Having received no answer, on September 3d he wrote another letter, requesting that consent be indorsed on the proposed order. No reply was made to either of these letters; the plaintiff’s attorney in his affidavit saying that the letters were not received, and defendant’s attorney saying that he inferred from the failure to ‘respond that the plaintiff’s attorney had * consented to the enlargement of the time. After the term had ended, on the 2d of October, 1917, the bill of exceptions was presented to the District Judge and signed by him in the presence of counsel for the plaintiff. At the same time counsel for plaintiff signed a stipulation as to what should constitute the record for the Circuit Court of Appeals. The writ of error was signed on the same day.
[1] When the time within which an act necessary to bring a cause to this court b3f writ of error or appeal is fixed by statute, this court has no power to relieve against the failure to comply ,with the statute, and the District Court has no power to take any steps looking to the perfection of ah appeal or writ of error after it has lost jurisdiction. Hence, if the writ of error had not been granted, in this case within six months, this court would be obliged to dismiss it. Old Nick Williams Co. v. United States, 215 U. S. 541, 30 Sup. Ct. 221, 54 L. Ed. 318. It is settled beyond question, however, that a bill of exceptions may be allowed by consent after the time fixed by order or rule of the-District Court and after the expiration of the term at which the case was decided. Waldron v. Waldron, 156 U. S. 361, 15 Sup. Ct. 383, 39 L. Ed. 453; Jennings v. Philadelphia, etc., Co., 218 U. S. 255, 31 Sup. Ct. 1, 54 L. Ed. 1031: It follows from this holding that the District Court does not completely lose its jurisdiction after the expiration of the term, for, if it did, consent would not avail. The case first cited lays down the rule that if the bill of exceptions be allowed after the time fixed, either by consent or by an order of the court, and after the expiration of the term, it will be sufficient unless the point was expressly saved by objection made at the time to the allowance.
[2] In this case, after the expiration of 30 days fixed by the order, and after the expiration of the term, the bill of exceptions was allowed
“The proceeding was coram non judiee. The appellee was not in court, or before a court. The judge and the court had lost all power over the cause, the parties, and the record.”
Under these circumstances the court held that the failure of the appellee to object to the allowance of the bill of exceptions could not avail the appellant, evidently for the reason that the cause was no longer in the lower court. The court says:
“So grave a matter as the allowance of a bill of exceptions after the close of the term and after the court had lost all judicial power over the record should not rest upon a mere Implication from silence. There should be express consent, or conduct which should equitably estop the opposite party from denying that he had consented.”
We think it clear, therefore, that the Supreme Court of the United States did not intend, in Jennings v. Philadelphia, etc., Co., supra, to overrule, without mentioning, the important case of Waldron v. Waldron, supra. The distinction is that in the latter case, as in this case, the District Court had not lost its control of the case by the perfection of the writ of error or appeal, while in the Jennings Case the Supreme Court of the District of Columbia had lost its control by the allowance and perfection of the appeal to the Supreme Court.
The evidence of consent to the allowance of the bill of exceptions and waiver of the time is very strong. The record does not show that any objection was made. The signing of the stipulation by counsel for plaintiff as to what should constitute the record, without the reservation of any technical rights, goes far to show waiver of all irregularities that were not jurisdictional. The case is thus even stronger against the defendant in error than was the case of Waldron v. Waldron, supra.
[3] We have the strong conviction that the extreme penalty of dismissal of a cause without a hearing on the merits should not be imposed upon a litigant for the inadvertence of«his counsel, except in flagrant cases of neglect, or where the court is compelled by statute or clearly established practice to do so. In such cases orderly procedure may be well maintained by the infliction of the penalty of costs on the defaulting party or his attorney.
Motion denied.