Coberth v. Wilson, 6854.

• Decision Date: 13 March 1933
• Docket Number: No. 6854.,6854.
• Citation: 63 F.2d 156
• Parties: COBERTH v. WILSON.
• Court: U.S. Court of Appeals — Ninth Circuit

63 F.2d 156 (1933)

COBERTH v. WILSON.

No. 6854.

Circuit Court of Appeals, Ninth Circuit.

February 6, 1933.

Rehearing Denied March 13, 1933.

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 Hursh 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 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.

Section 2 of rule 10 of this court provides as follows: "Only so much of the evidence shall be embraced in a bill of exceptions as may be necessary to present clearly the questions of law involved in the rulings to which exceptions are reserved, and such evidence as is embraced therein shall be set forth in condensed and narrative form, save as a proper understanding of the questions presented may require that parts of it be set forth otherwise."

It is true that the courts have held, in cases where a motion is made for a directed verdict, that the bill of exceptions should contain all the evidence, and it was upon that theory that this court in the case of Oregon-American Lumber Co. v. Simpson, 8 F.(2d) 946, refused to dismiss the appeal; but it will be remembered that that case was decided in 1925, before this court had adopted the above quoted section of rule 10. The record in that case shows that that was one of the reasons urged upon the court why the appeal should not be dismissed.

The case of McDonald v. Harding, supra, 57 F.(2d) 119, 124, was decided by this court March 21, 1932. In that case we said:

"It is clear...