Atchison, T. & SF Ry. Co. v. ABC Fireproof Warehouse Co., 10406

• Decision Date: 03 April 1936
• Docket Number: No. 10406,10483.,10406
• Parties: ATCHISON, T. & S. F. RY. C. v. A. B. C. FIREPROOF WAREHOUSE CO. (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

82 F.2d 505 (1936)

ATCHISON, T. & S. F. RY. C. v. A. B. C. FIREPROOF WAREHOUSE CO. (two cases).

Nos. 10406, 10483.

Circuit Court of Appeals, Eighth Circuit.

March 3, 1936.

Rehearing Denied April 3, 1936.

George J. Mersereau and Dean Wood, both of Kansas City, Mo. (Cyrus Crane and John N. Monteith, both of Kansas City, Mo., on the brief), for appellant.

William G. Holt, of Kansas City, Mo., for appellee.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

WOODROUGH, Circuit Judge.

On motion to strike bill of exceptions:

The judgment sought to be reviewed by the appeal in this case was rendered March 23, 1934, the motion for new trial being overruled April 14, 1934, during the November, 1933, term of the court. Appeal was allowed July 13, 1934, and on the same day time for filing bill of exceptions was extended to August 20, 1934. Thereafter, ten more orders were made, each one of them being within the extension period and each extending the time to file bill of exceptions for a period not exceeding forty days from the date of the order and the bill was filed and settled within the time allowed by the last order. The motion to strike the bill of exceptions is upon two grounds: (1) That the orders extending time to file the bill do not provide that "the judgment term" shall be extended, or equivalent phraseology; (2) that one of the extensions for a period of two days was made by Judge Otis during the absence from the District of Judge Reeves, who tried the case.

(1) We are in accord with the opinion expressed by the Circuit Court of Appeals of the Fourth Circuit in United States v. Tucker, 65 F.(2d) 661, 662. "If the order extends the time for settling the bill of exceptions, it extends the term for that purpose; and vice versa." As used in the extension orders the phrase "the time for filing bill of exceptions" was equivalent to and meant the same thing as though all the words "time for preparing, serving, presenting, settling, allowing and filing the bill of exceptions" had been included. The orders clearly reflect the intention of the court and were sufficient in form. United States v. Bass (C.C.A.) 64 F.(2d) 467.

(2) Judge Otis has certified that he was authorized by Judge Reeves to make necessary orders during the absence of the latter from the District and that his order extending time for filing the bill of exceptions in this case was made, during the absence of Judge Reeves, pursuant to that authority. Though we have held that the judge who tried the case should settle the bill of exceptions Kava v. United States (C.C.A.) 61 F.(2d) 397, we find no reason to hold that another judge may not, by arrangement with the associate judge, grant a short extension of time, as was done in this case. Such practice is covered by rule of court in New York and approved by the judges. United States v. Stephanidis (D.C.) 46 F.(2d) 691; Imperial Bev. Corp. v. Charles E. Hires Co. (D.C.) 55 F.(2d) 405. Neither precedent nor reasons that appeal to us have been shown to discredit it.

Motion to strike the bill of exceptions denied.

This lawsuit grows out of the accidental burning of three automobiles in a boxcar of the Santa Fé Railway Company standing at its loading dock in Kansas City on the evening of October 26, 1920. Each of the three several owners of the automobiles had contracted with the A. B. C. Warehouse Company to have his car shipped to California, and the warehouse company had placed the three cars in the boxcar furnished by the Santa Fé Railway Company for the shipment. An attempt was made to drain the gasoline out of the cars after dark by the light of an open flame lantern, the fumes ignited and the cars were destroyed. After the fire, each of the owners brought his action in the state court to recover the value of his car at the time of loss, joining both the warehouse company and the Santa Fé Railway Company in his suit.

While the litigation was pending and in October, 1922, the A. B. C. Warehouse Company brought this action at law against the Santa Fé Railway Company. The warehouse company alleged in its petition:

That it had delivered the three automobiles to the railway company by loading the same into a freight car furnished by the railway company at its loading dock in Kansas City to be transported to Los Angeles and there delivered to the plaintiff's agent; that the railway company accepted the property so loaded in the car and undertook to transport and deliver it as a common carrier for hire in consideration of the lawful freight charges to be paid by the warehouse company; that the railway company at the same time issued its bill of lading for said property, which bill of lading has always been in the possession of the warehouse company and belongs to it; that the railway company failed to deliver the property notwithstanding demand duly made for the property and for its value, which was alleged to be $16,323.50.

The prayer was for judgment against the railway company in that amount with lawful interest from the date of the loading.

The case was removed to the federal court on the ground of diversity of citizenship and on November 19, 1930, eight years after the commencement of the action, the railway company filed its second amended answer, in which it made general denial, and also pleaded that the damages for which the action was brought "were directly caused and contributed to by plaintiff's own careless and negligent acts," wherefore, it prayed to be dismissed with costs. It then alleged in separate paragraphs III, IV, V, and VI, as separate defenses, that the three suits of the three owners of the automobiles brought against the warehouse company and the railway company had been prosecuted to final judgments in the state courts and that the judgment in each case had gone against the warehouse company and that no recovery had been allowed against the railway company in either of the actions. The proceedings claimed to have been had in each of the three suits were described, and it was alleged that the final judgment in each of the cases was a "final adjudication of the lack of the right of the (warehouse company) to recover against the railway company herein and that upon such final judgments all of the issues in this case as applied to (the automobiles in question) became * * * res adjudicata, and by reason of the premises the plaintiff in this cause is not entitled to recover any judgment whatever against the defendant herein."

A demurrer to the special defense of res adjudicata was filed for the warehouse company, but it was not pressed. Instead of pressing the demurrer, the warehouse company joined issue upon the special defenses by a reply in which it denied each and every allegation contained in the paragraphs III, IV, V, and VI. Pursuant to stipulation of the parties filed December 4, 1930, it was ordered that the issues set forth in paragraphs III, IV, V, and VI be tried to the court and not to the jury. Separate trial of the special issues was had to the court on December 4, 1930, and on such trial the railway company introduced in evidence, over objection, the records of the litigation and the evidence which had been taken in the three suits of the automobile owners against the railway and warehouse companies referred to in paragraphs III, IV, V, and VI of the answer. The warehouse company thereupon orally demurred to the evidence so introduced, and the court, having taken the matter under advisement, decided the separate issues against the railway company on June 16, 1931. An entry of that date recites that the court had on that day filed its memorandum opinion "overruling the defendant's plea of estoppel and allowing the defendant exceptions." But, through inadvertence, no formal order was entered. The inadvertence was corrected by the trial court on March 30, 1934, by directing an order nunc pro tunc as of the date June 16, 1931, to be entered. The actual spreading of the order upon the records was delayed on account of unsuccessful motions and proceedings taken by the railway company until July 1, 1935, at which time it was ordered to be and was duly recorded.

The nunc pro tunc order recited the proceedings that had been had on the trial to the court without a jury of the special issues presented by paragraphs III, IV, V, and VI of the railway company's answer, and "adjudged and decreed that the issue of estoppel or res adjudicata set up by the defendant (railway company) be found against it and that the plaintiff recover the costs of the hearing."

The railway company complained in the trial court and also complains in this court because the judgment entry covering the court's decision on the special issues was made nunc pro tunc, but such complaints are without merit. When the trial court's attention was called to the fact that there had been an inadvertent omission to enter an order which the trial court had decided upon and announced on June 16, 1931, the clear duty of the court was to enter it nunc pro tunc as of that date.

The railway company has filed a separate appeal from the order which was made by the trial court on March 30, 1934, nunc pro tunc as of the 16th of June, 1931. Such appeal is No. 10483 (consolidated for submission with No. 10406), but it is clear that the order so attempted to be appealed from was not an appealable order. This lawsuit was brought by the warehouse company against the railway company to recover a money judgment for the value of the automobiles covered by the bill of lading. The ruling on the special defenses of res adjudicata or estoppel did not determine whether or not the railway company owed the warehouse company the amount sued for, or any amount. As the order of June 16, 1931, was merely an interlocutory order and not appealable, the attempted appeal from that order, No. 10483, should be dismissed. Collins v. Miller, 252 U.S. 364, 40 S.Ct. 347, 64 L. Ed. 616; Rexford v. Brunswick-Balke Collender Co., 228 U.S....