It appears that on the 18th day of April, to comply with such terms as it may impose. 1925, two indictments were returned against Opportunity will be given a plaintiff in error petitioner and one Clifford R. Obermeyer; to comply therewith. In the Claasen Case, one charging the unlawful transportation of above cited, the sections of the statute rea stolen automobile from the state of Colo- lating to the taking of security, to wit, Rev. rado to the state of Illinois, and the second St. §§ 1000 and 1007 (Comp. St. §§ 1660, indictment charging a conspiracy to commit 1666), were considered and construed. That this substantive offense. The cases were as- court said: "By section 1000 of the Revised signed to be tried at Denver, Colo., and were Statutes, it is provided that every justice or numbered respectively 5052 and 5054 on the judge signing a citation on any writ of erdocket of said court. That court ordered ror shall take security for the prosecution that the two cases be tried together, and on of the writ, and for costs, where the writ is May 15, 1925, the trial resulted in convic- not to be a supersedeas and stay of execution, which was followed on the same day by tion, and for damages and costs where it is judgment and sentence. to be. In a criminal case, there are no damages; and in such a case, the United States being a party, it is provided by subdivision 4 of rule 24 of this court, that in cases where the United States are a party no costs shall be allowed in this court for or against the United States."

[1] Thereafter, on the 13th day of July, 1925, petitioner lodged with the clerk of the district court at Denver, Colo., a petition for writ of error, with assignment of errors and brief in support thereof. The writ was refused; the reason for such refusal, as appears from the correspondence filed in connection with the application for writ of mandamus, being the failure to file bond for costs as a prerequisite to the issuance of the writ. The petition for writ of error, accompanied by assignments of error, was thus lodged with the clerk of the court and brought to the attention of the trial judge within 60 days from the date the judgment was entered. The general rule, now well established, is that the allowance of a writ of error from Circuit Courts of Appeals to District Courts in a criminal case, not capital, is a matter of right where the essential requirements of law have been complied with. In re Claasen, 140 U. S. 200, 11 S. Ct. 735, 35 L. Ed. 409; Hudson v. Parker, 156 U. S. 277, 15 S. Ct. 450, 39 L. Ed. 424; M'Knight v. United States (C. C. A. 6th Circuit) 113 F. 451, 51 C. C. A. 285; Hardesty et al. v. United States (C. C. A. 6th Circuit) 184 F. 269, 106 C. C. A. 411; Application of Sorini et al. (C. C. A. 9th Circuit) 4 F. (2d) 802.

So far as we are now advised from the showing made by the petitioner, the sole ground of refusal was his failure to file a cost bond, ultimately fixed at $250. [2] The filing of a cost bond is not an essential to appellate jurisdiction. Brown v. McConnell, 124 U. S. 489, 8 S. Ct. 559, 31 L. Ed. 495; Kingsbury v. Buckner, 134 U. S. 650, 10 S. Ct. 638, 33 L. Ed. 1047; Davidson v. Lanier, 4 Wall. 447-454, 18 L. Ed. 377; Seymour v. Freer, 5 Wall. 822, 18 L. Ed. 564.

The court will not, because of such omission, dismiss the writ except on failure later

And in Hudson v. Parker, supra, the court, in approving the rule announced in the Claasen Case, held that: "The only 'proper security,' then, in a criminal case, is security for the appearance of a prisoner admitted to bail." See, also, M'Knight v. United States; Hardesty et al. v. United States; Application of Sorini et al., above cited. It has accordingly been held that the right to a writ of error upon proper application exists without the giving of security. Of course, enlargement upon bail is an entirely different matter.

[3, 4] It is undoubtedly true that a writ, though allowed, must be duly filed in the court which rendered the judgment in order to confer jurisdiction upon this court. Title Guaranty Co. v. General Electric Co., 222 U. S. 401, 32 S. Ct. 168, 56 L. Ed. 248; General Motors Acceptance Corporation v. Lawrence, 9 F. (2d) 64, decided by this court at this term. But the jurisdiction of this court is not in issue. The petitioner seeks to lay the proper foundation for that jurisdiction. Upon the face of the record before us he has done all that was required to entitle him to the allowance of his writ. His application was duly filed within 60 days from the date of the judgment which he attacks. The writ was denied apparently upon an insufficient ground. No course was left open to him other than to apply to this court, as he has done at its first sitting.

The application has been heard upon ex parte presentation, and this opinion is based upon the showing made by the petitioner without traverse by the respondent. Our conclusion is that the motion to allow the pe

10 F.(2d) 111

It appears that on the 18th day of April, to comply with such terms as it may impose. 1925, two indictments were returned against Opportunity will be given a plaintiff in error petitioner and one Clifford R. Obermeyer; to comply therewith. In the Claasen Case, one charging the unlawful transportation of above cited, the sections of the statute rea stolen automobile from the state of Colo- lating to the taking of security, to wit, Rev. rado to the state of Illinois, and the second St. §§ 1000 and 1007 (Comp. St. §§ 1660, indictment charging a conspiracy to commit 1666), were considered and construed. That this substantive offense. The cases were as- court said: "By section 1000 of the Revised signed to be tried at Denver, Colo., and were Statutes, it is provided that every justice or numbered respectively 5052 and 5054 on the judge signing a citation on any writ of erdocket of said court. That court ordered ror shall take security for the prosecution that the two cases be tried together, and on of the writ, and for costs, where the writ is May 15, 1925, the trial resulted in convic- not to be a supersedeas and stay of execution, which was followed on the same day by tion, and for damages and costs where it is judgment and sentence. to be. In a criminal case, there are no damages; and in such a case, the United States being a party, it is provided by subdivision 4 of rule 24 of this court, that in cases where the United States are a party no costs shall be allowed in this court for or against the United States."

[1] Thereafter, on the 13th day of July, 1925, petitioner lodged with the clerk of the district court at Denver, Colo., a petition for writ of error, with assignment of errors and brief in support thereof. The writ was refused; the reason for such refusal, as appears from the correspondence filed in connection with the application for writ of mandamus, being the failure to file bond for costs as a prerequisite to the issuance of the writ. The petition for writ of error, accompanied by assignments of error, was thus lodged with the clerk of the court and brought to the attention of the trial judge within 60 days from the date the judgment was entered. The general rule, now well established, is that the allowance of a writ of error from Circuit Courts of Appeals to District Courts in a criminal case, not capital, is a matter of right where the essential requirements of law have been complied with. In re Claasen, 140 U. S. 200, 11 S. Ct. 735, 35 L. Ed. 409; Hudson v. Parker, 156 U. S. 277, 15 S. Ct. 450, 39 L. Ed. 424; M'Knight v. United States (C. C. A. 6th Circuit) 113 F. 451, 51 C. C. A. 285; Hardesty et al. v. United States (C. C. A. 6th Circuit) 184 F. 269, 106 C. C. A. 411; Application of Sorini et al. (C. C. A. 9th Circuit) 4 F.(2d) 802.

So far as we are now advised from the showing made by the petitioner, the sole ground of refusal was his failure to file a cost bond, ultimately fixed at $250. [2] The filing of a cost bond is not an essential to appellate jurisdiction. Brown v. McConnell, 124 U. S. 489, 8 S. Ct. 559, 31 L. Ed. 495; Kingsbury v. Buckner, 134 U. S. 650, 10 S. Ct. 638, 33 L. Ed. 1047; Davidson v. Lanier, 4 Wall. 447-454, 18 L. Ed. 377; Seymour v. Freer, 5 Wall. 822, 18 L. Ed. 564.

The court will not, because of such omission, dismiss the writ except on failure later

And in Hudson v. Parker, supra, the court, in approving the rule announced in the Claasen Case, held that: "The only 'proper security,' then, in a criminal case, is security for the appearance of a prisoner admitted to bail." See, also, M'Knight v. United States; Hardesty et al. v. United States; Application of Sorini et al., above cited. It has accordingly been held that the right to a writ of error upon proper application exists without the giving of security. Of course, enlargement upon bail is an entirely different matter.

[3, 4] It is undoubtedly true that a writ, though allowed, must be duly filed in the court which rendered the judgment in order to confer jurisdiction upon this court. Title Guaranty Co. v. General Electric Co., 222 U. S. 401, 32 S. Ct. 168, 56 L. Ed. 248; General Motors Acceptance Corporation v. Lawrence, 9 F. (2d) 64, decided by this court at this term. But the jurisdiction of this court is not in issue. The petitioner seeks to lay the proper foundation for that jurisdiction. Upon the face of the record before us he has done all that was required to entitle him to the allowance of his writ. His application was duly filed within 60 days from the date of the judgment which he attacks. The writ was denied apparently upon an insufficient ground. No course was left open to him other than to apply to this court, as he has done at its first sitting.

The application has been heard upon ex parte presentation, and this opinion is based upon the showing made by the petitioner without traverse by the respondent. Our conclusion is that the motion to allow the pe

10 F.(2d) 111

or four years old, was sitting upon the track, in front of an approaching train. Plaintiff's intestate, seeing the danger, ran to the child, seized it, and threw it clear of the track on the side opposite to that from which he came, but, continuing across the track himself, was struck by the locomotive, thrown down, and received injuries from which he died. The court said:

sion usually present on such occasions, the uncertainty as to the proper move to be made, the promptness required, and the liability to mistake as to what is best to be done, suggests that much latitude of judgment should be allowed to those who are thus forced by the strongest dictates of humanity to decide and act in sudden emergencies. And the doctrine that one who, under those or similar circumstances, springs to the rescue of another, thereby encountering even great danger to himself, is guilty of negligence per se, is neither supported by principle nor author

"Under the circumstances in which the deceased was placed, it was not wrongful in him to make every effort in his power to rescue the child, compatible with a reasonable regard for his own safety. It was his duty_ity." to exercise his judgment as to whether he could probably save the child without serious injury to himself. If, from the appearances, he believed that he could, it was not negligence to make an attempt so to do, although believing that possibly he might fail and receive an injury himself. He had no time for deliberation. He must act instantly, if at all, as a moment's delay would have been fatal to the child. The law has so high a regard for human life that it will not impute negli gence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons." (Italics ours.)

In the Eckert Case, as stated by the court, plaintiff's intestate had no time for deliberation. He was called upon to act instantly. A moment's delay would have been fatal to the child. No such condition existed in the case at bar. Not only did plaintiff have time for reflection, but he did reflect. He folded a napkin about the wire. He tested the wire with his fingers. He then seized it and commenced to carry it across the street. The children, whom he sought to shield according to his own testimony, were 25 or 30 feet from the place where he picked up the wire. They were not approaching the wire. They were in no immediate danger of coming in contact with it. His act was to guard against future possible danger to the children, and not danger that was imminent, calling for immediate action, and giving no time for reflection or consideration.

The distinction between the instant case and the Eckert Case exists in practically all of the cases cited and relied upon by counsel for plaintiff. In Pennsylvania Co. v. Langendorf, supra, the plaintiff was struck by a locomotive while attempting to rescue a little child from being struck down by an approaching train. In that case the court said:

"The attendant circumstances must be regarded; the alarm, the excitement and confu10 F. (2d)-8

In Railway Co. v. Lynch, supra, the plaintiff, a watchman at a railway crossing, sought to rescue a woman on the track from an approaching caboose. In Becker v. Railroad Co., supra, the plaintiff, a boy 12 or 14 years of age, was attempting to rescue a girl companion, who had fallen between the ties of a railroad bridge, from the danger of an approaching train. In Corbin v. Philadelphia, supra, the plaintiff's intestate was killed while attempting to rescue a boy who had been overcome by gas in a trench. In Railroad Co. v. Liderman, supra, a mother sought to rescue her three year old child from an approaching street car. In Linnehan v. Sampson, supra, the plaintiff sought to rescue a man who was being gored by a bull. In Dixon v. Railroad Co., supra, the plaintiff sought to rescue one who was in a position of peril from an approaching train. In Saylor v. Parsons, supra, the plaintiff sought to rescue a man from a falling wall by seizing a 2x4 about 7.feet long and rushing over and placing it against the wall to prevent it from falling. In Railroad Co. v. Ridley, supra, plaintiff's intestate sought to rescue a boy, about 8 years of age, from an approaching train.

In State v. Baltimore, supra, the facts were these:

"On a Sunday afternoon Edwin H. Dove, while taking a walk with a friend, noticed that an electric wire of appellee [defendant below] had fallen from a pole line on Pratt street, near Schroeder street. The wire had fallen in the form of a loop, and extended for some distance in and over the gutter, with the ends caught and entangled with the other overhanging wires, or in the branches of trees. The insulation was off of part of the wire, and at one point, where it rested in the gutter, it was sparkling and sputtering. A number of children were playing on the sidewalk in close proximity to the wire and were poking at it with sticks. At the time Dove undertook to push or throw the wire into the street the sparkling seems to have ceased.