63 F.2d 156 (9th Cir. 1933), 6854, Coberth v. Wilson

Docket Nº:6854.
Citation:63 F.2d 156
Case Date:February 06, 1933
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 156

63 F.2d 156 (9th Cir. 1933)




No. 6854.

United States Court of Appeals, Ninth Circuit.

February 6, 1933

Rehearing Denied March 13, 1933.

Appeal from the District Court of the United States for the District of Oregon; John H. McNary, Judge.

Omar C. Spencer and Philip Chipman and Carey, Hart, Spencer & McCulloch, all of Portland, Or., for appellant.

Barnett H. Goldstein, of Portland, Or., for appellee.

Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.

SAWTELLE, Circuit Judge.

Appellant seeks the reversal of the judgment for error in denying a motion for a directed verdict made at the close of the evidence, upon the ground that the evidence fails to show any act of negligence or malpractice on his part. Appellee moves to strike out the bill of exceptions, on the ground that it is not in condensed, narrative form as required by rule 10 of the rules of practice of this court, which requirement has been adjudicated by this court in the cases of McDonald v. Harding, 57 F.2d 119; Hursh v. Killits, 58 F.2d 903; and Yangtsze Rapid S. S. Co. v. Deutsch-Asiatische Bank, 59 F.2d 8.

Appellant seeks to obviate rule 10 by saying that he felt that all of the evidence must be brought before this court, in view of the determination of the issue resting almost exclusively upon expert evidence, and that the cases of Harsh v. Killits, and Yangtsze Rapid S. S. Co. v. Deutsch-Asiatische Bank, supra, had not come to his attention until published in the Federal Reporter after the 1st day of July, 1932, following the decisions, and there was then not time to comply with rule 10 as required by those two cases. But

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this is no justification. The language of rule 10 is plain.

The bill of exceptions, consisting of nearly 300 printed pages, is a verbatim transcript in the form of questions and answers of all the testimony taken at the trial. The certificate of the court reporter is to the effect that: 'The foregoing * * * is a full and correct transcript from my said shorthand notes of the testimony, objections, motions, rulings, and exceptions therein, together with the charge of the court to the jury and the exceptions thereto, and the whole thereof.'

Appellant admits that the only issue on appeal is the action of the trial court in refusing to direct a verdict in his favor.

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