American Surety Co. v. Fischer Warehouse Co.

• Decision Date: 19 March 1937
• Docket Number: No. 8102.,8102.
• Citation: 88 F.2d 536
• Parties: AMERICAN SURETY CO. OF NEW YORK v. FISCHER WAREHOUSE CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

88 F.2d 536 (1937)

AMERICAN SURETY CO. OF NEW YORK v. FISCHER WAREHOUSE CO. et al.

No. 8102.

Circuit Court of Appeals, Ninth Circuit.

February 15, 1937.

Rehearing Denied March 19, 1937.

Plowden Stott and Edward J. Clark, both of Portland, Or., for appellant.

Wilbur, Beckett, Howell & Oppenheimer, R. W. Wilbur, H. B. Beckett, F. C. Howell, and E. K. Oppenheimer, all of Portland, Or., for appellee Eyre & Co.

Geo. A. Rhoten, of Salem, Or., for appellees Frazier.

Custer E. Ross, of Salem, Or., for appellees Lumber Co. and Jack.

Keyes & Page, of Salem, Or., for appellees Bank, Kelly, and Tate.

I. H. Van Winkle, Atty. Gen., and Willis S. Moore, Asst. Atty. Gen., for appellees Snell and White.

Before DENMAN, MATHEWS, and HANEY, Circuit Judges.

HANEY, Circuit Judge.

In a suit brought by appellant to cancel an instrument, denominated a bond, upon which appellant was surety, the court below refused cancellation, and from the decree entered this appeal is taken.

The suit was brought against certain officers of the state of Oregon, and appellees who were asserting claims against appellants. The bill alleged that the instrument was void, because it was obtained by fraud and false representations; (2) it was never delivered, approved, or accepted as provided by the Oregon statutes; (3) it had not been required by any department or official of Oregon; (4) it was not approved by the Public Service Commission of Oregon, and the approval of the Director of Agriculture had been made after expiration of the instrument. The appellees who were claimants asserted the validity of the bond, and set up by cross-complaint their respective claims. Appellee Edward L. Eyre & Co., hereinafter referred to as Eyre Company, pleaded that appellant was estopped to claim invalidity of the bond. All claimants asserted the right to recover attorney's fees. Appellant by reply put in issue these matters, and also asserted that the claims of appellee Eyre Company and appellee bank were not sustainable as warehouse transactions against the instrument sought to be canceled.

The cause was referred to a special master who submitted his report to the court below, finding (1) that no estoppel existed in favor of Eyre & Co.; (2) that the instrument mentioned as a bond was void and should be canceled "as having been obtained by fraud and false representations and being without consideration." He recommended that appellant be ordered to pay his costs, amounting to $373.50, and his compensation to be fixed by the court. By finding that the alleged bond was void, the special master eliminated any necessity for allowing attorney's fees.

Appellant excepted to the recommendation made by the master in regard to the master's compensation and costs. All appellees excepted to the report. There was a supplemental report also regarding the claim of Eyre & Co., but it is unnecessary here to discuss it.

The trial court held that the alleged bond was not a statutory bond, but was valid as a common-law bond; that attorney's fees should be granted to appellee claimants; that the master's compensation and costs were to be paid by appellant; that the claims of appellee Eyre Company and appellee bank should be allowed.

The findings of the court followed this holding, and, in addition, concluded, as a matter of law, that appellant was estopped, as to appellee Eyre Company, to claim invalidity of the bond. Before these findings were adopted by the court, appellant excepted thereto and proposed findings. By the decree, appellant's exceptions were wholly denied.

The first of the six assignments of error is in part:

"The court erred in finding, concluding and decreeing the $11,000.00 writing dated February 1, 1932, denominated a bond, involved in this suit was or is a valid and subsisting obligation of complainant upon which respondent claimants could recover and erred in refusing to cancel and hold the same for naught as prayed for by complainant, and erred in not confirming and adopting the findings of fact, conclusions of law and recommendations for a decree of * * * the special master in his report * * * which * * * were * * * as follows * * *."

There follows portions of the master's report, exceptions of appellees thereto, findings, and appellant's exceptions thereto. In all, this assignment covers 41 pages of the printed transcript.

In appellant's original brief the only mention of specification of errors is the following: "These six assignments of error are hereby specified by appellant as relied upon by appellant upon this appeal."

Upon the argument, this court expressed its doubt as to the sufficiency of the assignments of error and after announcing that there was no specification of errors, permitted new briefs to be filed to contain a specification of errors. Appellant has filed a new brief containing what is termed a specification of errors. There are 84 errors specified. It required 120 pages of the printed brief to set forth all the errors specified. It is explained that the first assignment of errors covers the first 34 specifications of errors, which are contained in 52 pages of the printed brief.

An assignment of errors is required to be filed by appellant (for appeals in law actions, see 28 U.S.C.A. § 862) "which shall set out separately and particularly each error asserted and intended to be urged." Rule 11 of this court which is substantially the same as Supreme Court Rule 9 (28 U.S.C.A. following section 354). The penalty is as stated by the rule: "No appeal shall be allowed until such assignment of errors shall have been filed." Except in the case of plain errors, of which in this case there are none, an error not assigned will be disregarded. Behn, Meyer & Co. v. Campbell & Go Tauco, 205 U.S. 403, 409, 27 S.Ct. 502, 51 L.Ed. 857; Paraiso v. U. S., 207 U.S. 368, 28 S.Ct. 127, 52 L.Ed. 249; Wood v. A. Wilbert's Sons S. & L. Co., 226 U.S. 384, 33 S.Ct. 125, 57 L.Ed. 264; Pacific States Co. v. White, 296 U.S. 176, 56 S. Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853; Lloyd v. Chapman (C.C.A. 9) 93 F. 599, 35 C.C.A. 474; Holsman v. U. S. (C.C.A. 9), 248 F. 193, 160 C.C.A. 271, certiorari denied 249 U.S. 600, 39 S.Ct. 258, 63 L.Ed. 796; Wight v. Washoe County Bank (C.C.A. 9) 251 F. 819; Louie Share Gan v. White (C.C.A. 9) 258 F. 798; Maryland Casualty Co. v. Klickalumber Co. (C.C.A. 9) 41 F.(2d) 222.

Likewise, if the assignments are so indefinite that the particular error is not set forth, the assignments will be disregarded. People of State of New York v. Kleinert, 268 U.S. 646, 45 S.Ct. 618, 69 L. Ed. 1135; Seaboard Air Line Ry. Co. v. Watson, 287 U.S. 86, 53 S.Ct. 32, 77 L.Ed. 180, 86 A.L.R. 174; Dennis v. Roberts (C.C.A. 9) 19 F.(2d) 1; McCarthy v. Ruddock (C.C.A. 9) 43 F.(2d) 976. See, also, Wade v. Blieden (C.C.A. 8) 86 F.(2d) 75, decided November 5, 1936.

The purpose of the rules is "to enable the court, as well as opposing counsel, readily to perceive what points are relied on." Seaboard Air Line Ry. Co. v. Watson, supra, 287 U.S. 86, 91, 53 S.Ct. 32, 34, 77 L. Ed. 180, 86 A.L.R. 174. See, also, Doe v. Waterloo Min. Co. (C.C.A. 9) 70 F. 455, 461, 17 C.C.A. 190; Lloyd v. Chapman, supra, 93 F. 599, 600; Bank of Italy v. F. Romeo & Co., Inc. (C.C.A. 9) 287 F. 5, 8.

In considering the sufficiency of the assignments, resort cannot be had to the briefs to enlarge them, or to make them more particular. Doe v. Waterloo Min. Co., supra, 70 F. 455, 461; Lloyd v. Chapman, supra, 93 F. 599, 600; Bank of Italy v. F. Romeo & Co., Inc., supra, 287 F. 5, 8. Examples of indefinite assignments may be found in the above-cited cases.

As shown by the statement, it is apparent that one issue of the case was whether or not the alleged bond was valid. The court held that it was valid. The first assignment amounts to saying that the court was wrong in so holding. What was the erroneous basis used, or the erroneous step made by the court which shows his conclusion was wrong? The court might have erred in reaching his conclusion by considering testimony erroneously admitted; by erroneously excluding evidence; by finding a fact not supported by substantial evidence; by the erroneous application of law; or by some other erroneous action. But we consider alleged errors, and if none are assigned, there are none to consider. The particularity of the description of the alleged error required by our rules is not complied with. By assignment No. 1, supra, appellant has not "set out separately and particularly each error asserted and intended to be urged." (Italics ours.) It does not point out in what respect or for what reason the decree is claimed to be erroneous.

The second assignment of error is in part as follows:

"The Court erred in finding, concluding and decreeing the $11,000.00 writing * * * was or is a valid and subsisting obligation of complainant and that complainant was estopped to claim or assert its right to cancellation of said writing as to respondent Edward L. Eyre & Company, a corporation, and erred in not confirming and adopting the Findings of Fact, Conclusions of Law and Recommendations for a decree of * * * the special master * * * in his report * * * which were * * * as follows."

Eighteen pages of the printed record are devoted to setting forth portions of the report, supplemental report, exceptions thereto by appellee Eyre Company, findings and exceptions thereto by appellant.

This assignment is subject to the same objections as pointed out with respect to the first assignment. There was an issue as to estoppel which can be seen from the pleadings, but the alleged error committed by the court in determining the issue is not set forth.

The third assignment is stated:

"The court erred in finding, concluding and decreeing the pretended claim of respondent appellee Eyre Company constituted a valid claim against the $11,000.00 writing denominated a bond, and in not canceling and holding for naught said $11,000.00 writing, among other reasons upon...