EK Wood Lumber Co. v. Andersen

• Decision Date: 06 January 1936
• Docket Number: No. 7791.,7791.
• Parties: E. K. WOOD LUMBER CO. v. ANDERSEN.
• Court: U.S. Court of Appeals — Ninth Circuit

81 F.2d 161 (1936)

E. K. WOOD LUMBER CO. v. ANDERSEN.^*

No. 7791.

Circuit Court of Appeals, Ninth Circuit.

January 6, 1936.

Claude E. Wakefield, and Bogle, Bogle & Gates, all of Seattle, Wash., for appellant.

W. F. Magill and M. B. Meacham, both of Portland, Or., for appellee.

Before WILBUR, GARRECHT, and MATHEWS, Circuit Judges.

GARRECHT, Circuit Judge.

The appellee has moved that the bill of exceptions be stricken, for the reason that it was not authenticated within the time provided by law or by the rules of the court below or within the term of court at which the trial was had. The bill of exceptions is also attacked as not showing that it contains all the evidence.

For a proper discussion of these preliminary questions, a chronological statement of some of the proceedings below is necessary.

The judgment was entered on December 5, 1934. In the absence of valid extensions, it is conceded that the term of court ended on February 5, 1935. 28 U.S. C.A. § 193.

The appellant, however, in its reply brief states that rule 108 of the court below provides as follows: "In all cases in which within thirty days prior to the expiration of a term of court an order, judgment or decree has been made or entered, the term shall be extended for thirty days beyond its statutory period for further action and for pleading therein."

We therefore look to the record to ascertain if any such order was entered prior to the expiration of the regular term; that is to say, prior to February 5, 1935.

Three such orders were filed on January 31, 1935. One was an order directing the forwarding of original exhibits to this court, another was an order extending the time and term for filing the bill of exceptions to March 4, 1935, and the third was an order extending the time for filing the transcript on appeal.

On March 2, 1935, or two days before the expiration of the term as extended by the second order above referred to, the District Judge entered an order and certificate reading in part as follows:

"This matter having, on the 18th day of February, 1935, come regularly on for hearing and settlement of a Bill of exceptions herein, * * * and the parties having been heard upon the proposed Bill, amendments and objection, and the Court being advised

"It is ordered That the foregoing Bill of Exceptions, consisting of pages 1 to 70 inclusive, be and the same hereby is settled, signed and certified. * * *

"It is further ordered, That said Bill of Exceptions so settled be, and the same hereby is, made a part of the record in the above entitled cause."

The appellee contends that it does not "appear from the Bill or the Certificate that it was settled within the term of court at which the trial was had nor within any valid extension thereof," and relies upon the cases of United States v. Payne (C.C. A.9) 72 F.(2d) 593, 594, and Tramel v. United States (C.C.A.10) 56 F.(2d) 142, 143.

It is to be observed, however, that the order and certificate signed by the District Judge in the instant case recites that the matter has "on the 18th day of February, 1935, come regularly on for hearing and settlement of a Bill of Exceptions," etc., and that "the foregoing Bill of Exceptions, consisting of pages 1 to 70 inclusive, be and the same hereby is settled, signed and certified." Such recitals make it affirmatively appear that the bill of exceptions was submitted for settlement within the time allowed by law. It is, of course, well settled that, "when a bill is submitted to the trial judge personally for his action, and his action is invoked, within the term, as stated, or as properly extended, no further extension of time is necessary." O'Brien's Manual of Federal Appellate Procedure (2d Ed.), 1935, Cum.Supp., p. 47.

In Welch v. St. Helens Petroleum Company, 78 F.(2d) 631, 632, decided on July 9, 1935, this court said:

"After the argument the appellees moved to strike out the bill of exceptions in each of these cases `upon the ground that none of said bills affirmatively shows that it was settled or signed or authenticated within either the term of court in which the trial occurred or the term of court in which judgment was entered, nor within any valid extension of either of said terms.' Appellees cite in support of their motion our decision in U. S. v. Payne (C.C.A.) 72 F.(2d) 593. That decision, however, is not controlling here. The certificate to the bill of exceptions in each of these cases is in the following language: `The following Bill of Exceptions duly proposed and agreed upon by counsel for the respective parties, is correct in all respects and is hereby approved, allowed and settled and made a part of the record herein and said Bill of Exceptions may be used by the parties plaintiff or defendant upon any appeal taken by either party plaintiff or defendant.' "The trial judge having certified to the fact that each of the bills of exceptions had been `duly proposed,' it thus affirmatively appears that each of the bills of exceptions was submitted to the court for settlement within the time allowed by law. The motion to strike the bills of exceptions is denied."

In United States v. Paul (C.C.A.9) 76 F.(2d) 132, the certificate to the bill of exceptions contained the following recital: "That the above and foregoing bill of exceptions was duly and regularly filed with the clerk of the said court and thereafter duly and regularly served within the time authorized by law; and that no amendments were proposed to said bill of exceptions excepting such as are embodied therein; that due and regular notice of time for settlement and certifying said bill of exceptions was given."

Of such certification we said: "This recital is sufficient in the absence of anything to the contrary in the bill to show that it was settled in due time. Case cited." See, also, U. S. v. Alcorn et al., 80 F.(2d) 487, decided by this court December 6, 1935; La Grotta v. U. S. (C.C. A.8) 77 F.(2d) 673, 675.

Accordingly, we hold that the bill of exceptions in the instant case was presented, settled, and signed within the time provided by law and the rules of the court below.

We advert next to the objection that it does not appear from the bill of exceptions or from the certificate of the District Judge that the bill contains all the evidence introduced at the trial. The appellee raises this point in connection with the appellant's contention that the court erred in denying the appellant's motion for a directed verdict, made at the close of the plaintiff-appellee's case and renewed after both sides had rested.

It is well settled, of course, that, "if a motion is made in the trial court to take the case from a jury, or other fact-finding tribunal, and direct a verdict or give judgment on the ground that, as a matter of law, only one verdict or judgment can be reached, it must appear that in the bill of exceptions is contained all the evidence actually adduced before the trial court." It is equally well settled that "by this it is not meant that the evidence shall be set forth at length in the words of the witnesses, and of the writings and documents admitted, but only that the purport and substance of all of it be included." Krauss Bros. Lumber Co. v. Mellon, 276 U.S. 386, 390, 391, 48 S.Ct. 358, 360, 72 L.Ed. 620, and the many cases there cited. See, also, Coberth v. Wilson (C.C.A.9) 63 F.(2d) 156, 157.

The bill of exceptions herein contains the following recitals:

"* * * A jury was duly empaneled and sworn and the following proceedings were had: * * *

"The plaintiff then called the following witnesses and presented the following proof in support of the plaintiff's case: * * *

"Plaintiff then rested. * * *

"Defendant's case * * *

"Whereupon the defendant rested.

"The plaintiff then called the following witnesses in rebuttal: * * *

"Mr. Magill. The plaintiff rests.

"Mr. Wakefield: The defendant has no further testimony, Your Honor."

We believe that the foregoing averments in the bill of exceptions sufficiently show that it contains all the evidence. It is not necessary that it so state in express terms.

In the leading case of Board of Com'rs of Gunnison County v. E. H. Rollins & Sons, 173 U.S. 255, 261, 262, 19 S.Ct. 390, 392, 43 L.Ed. 689, the bill of exceptions contained recitals very similar to those found in the bill in the instant case. The parallelism is evident from the following language of Mr. Justice Harlan: "We are of opinion that the bill of exceptions should be taken as containing all the evidence. It appears that, as soon as the jury was sworn to try the issues in the cause, `the complainants to sustain the issues on their part offered the following oral and documentary evidence.' Then follow many pages of testimony on the part of the plaintiffs, when this entry appears: `Whereupon complainants rested.' Immediately after comes this entry: `Thereupon the defendants, to sustain the issues herein joined on their part, produced the following evidence.' Then follow many pages of evidence given on behalf of the defendant, and the evidence of a witness recalled by the defendant, concluding with this entry: `Whereupon the further proceedings herein were continued until the 20th day of May, 1896, at 10 o'clock A. M.' Immediately following is this entry: `Wednesday, May 20th, at 10 o'clock, the further trial of this cause was continued as follows.' The transcript next shows some discussion by counsel as to the exclusion of particular evidence, after which is this entry: `Thereupon counsel for defendant made a formal motion under the evidence on both sides that the court instruct the jury to return a verdict for the defendant.' Although the bill of exceptions does not state, in words, that it contains all the evidence, the above entries sufficiently show that it does contain all the evidence. It is therefore proper to inquire on this record whether the circuit court erred in giving a peremptory instruction for the defendant." See, also, Clyatt v....