133 F.2d 67 (7th Cir. 1943), 8111, Hernberg v. Tipton

Docket Nº:8111.
Citation:133 F.2d 67
Party Name:HERNBERG v. TIPTON et al.
Case Date:January 27, 1943
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 67

133 F.2d 67 (7th Cir. 1943)



TIPTON et al.

No. 8111.

United States Court of Appeals, Seventh Circuit.

January 27, 1943

Trial court's findings, sustained by substantial evidence, will not be disturbed on appeal.

Page 68

Francis C. Harrison, of Davenport, Iowa, and Stewart A. Pearce and Kern, Pearce & Pearce, all of Carmi, Ill., for appellants.

Charles F. Potter, W. F. Weeks, Russell Surles, and Potter & Bezoni, all of Tyler, Tex., for appellee.

Before EVANS, KERNER, and MINTON, Circuit Judges.

MINTON, Circuit Judge.

The appellee, Hernberg, was sued, together with the appellants, Tipton and Phelan. Appellee Hernberg filed a counterclaim against Tipton and Phelan on four promissory notes totaling $9, 500. Copies of the notes were exhibited with the counterclaim. The answer alleged that the notes were procured by fraud; that the consideration for the notes had failed; that they were payable only out of oil if obtained from certain land; and that they were given without any consideration. By agreement of the parties, this controversy was severed from the main action, and tried by the court without the intervention of a jury. From a judgment for the appellee, Hernberg, the appellants, Tipton and Phelan, appeal.

The appellants filed a motion in arrest of judgment and for judgment notwithstanding the verdict for the reason that the appellee had failed to introduce in evidence the notes sued upon, and therefore there was a failure of proof. To this motion, the appellee filed a response, denying that the notes were not in evidence, and in order to relieve any doubt, he also requested the court in the same response: 'to reopen the evidence to receive the formal offer of said notes in evidence. ' This was opposed by a written motion of the appellants, argumentative in character. The court, upon such showing, stated that it had considered the notes to have been in evidence and the parties were aware thereof. Without further notice to the parties, the court sustained the motion of the appellee to reopen the evidence for the sole purpose of admitting the four notes into evidence, and directed the reporter to show the notes admitted as a part of the record, and then the record be closed.

The appellants contend that it was an abuse of discretion for the trial court to reopen the case, and, without giving the appellants an opportunity to...

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