McClellan

(dissenting).

I am unable to agree to the judgment in this case. It appears from the record that the court below refused to hear the testimony óf certain witnesses produced by the complainant on the trial, for the reason that the time fixed by the court for the taking of the evidence in the case in its order of reference had expired. That order of reference, it appears from the record, was based upon a so-called stipulation of the parties, which, in my judgment, cannot be properly regarded as a voluntary one. It appears that the cause only came to issue on the 9th day of February, 1903. It involved controverted questions of fact upon which, as the record shows, a large amount of testimony was taken; the record comprising eight large volumes of printed matter. It seems to me that each party to such a suit is legally entitled to a reasonable time after issue joined within which to prepare for trial. Yet the record contains this bill of exceptions: “On February 14, 1903 [only five days after the case had come to issue], this cause coming on for hearing after application [for] continuance had been overruled, over objections and exceptions of plaintiff the court announced in open…

after stating the case as above, delivered the opinion of the court.

The appellees moved to dismiss the appeal on several grounds, the first of which is that the assignment of error and the petition for appeal had not been filed in the court below before the same were presented to a judge of this court for the allowance of the appeal. It is true that rule 11 of this court ( 31 C.C.A. cxlvi , 90 F. cxlvi ) requires that the plaintiff in error or the appellant shall file with the court below his petition and assignment of error, and that no writ of error or appeal shall be allowed until such assignments of error have been filed. But we think the rule may be said to be sufficiently complied with when the order of allowance, together with the petition and the assignments of error, are filed in the court below. They were all filed in this case on the same date, and that is the date upon which it may be said that the order of allowance took effect.

The second ground of the motion is that the appeal could only be allowed by the judge of the trial court, and that a judge of this court was without jurisdiction to make such an order. The Code of Alaska ( 31 Stat. 414 , c. 51) provides…