Alexander v. Cosden Pipe Line Co v. 10 8212 13, 1933

• Decision Date: 08 January 1934
• Docket Number: No. 54,54
• Parties: ALEXANDER, Collector of Internal Revenue, v. COSDEN PIPE LINE CO. Argued Nov. 10—13, 1933
• Court: U.S. Supreme Court

290 U.S. 484

54 S.Ct. 292

78 L.Ed. 452

ALEXANDER, Collector of Internal Revenue,

v COSDEN PIPE LINE CO.

No. 54.

Argued Nov. 10—13, 1933.

Decided Jan. 8, 1934.

The Attorney General and Mr. J. Crawford Biggs, Sol. Gen., of Washington, D.C., for petitioner.

Mr. R. H. Wills, of Tulsa, Okl., for respondent.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

This was an action at law brought in the District Court for the Western District of Oklahoma to recover from the defendant moneys alleged to have been wrongfully exacted by him, as collector of internal revenue, from the plaintiff as excise taxes on the transportation of crude oil through the latter's pipe line.

Apart from matters eliminated during the pendency of the suit, four distinct claims were asserted. The first related to the transportation of 2,022,248.41 barrels for Cosden & Co. between November 1, 1917, and March 31, 1919, whereon an additional assessment of $15,066.87 was made and collected. The second related to the transportation of 20,644,020.34 barrels for the same company between April 1, 1919, and March 31, 1921, whereon an additional assessment of $170,946.04 was made and collected, of which sum a refund of $5,793.76 was made pending the suit, thereby reducing the claim to $165,152.289 The third related to the transportation of 3,666,048.39 barrels for the same company between July 1, 1918, and March 31, 1919, whereon an assessment of $36,666.50, was made and collected. The fourth related to the transportation of 99,590.31 barrels for the Pierce Oil Corporation between November 1, 1917, and March 31, 1919, whereon an assessment of $995.90 was made and collected.

The issues were tried under a written stipulation waiving a jury, and the court made special findings of fact and declarations of law whereon it rendered a judgment awarding the plaintiff the full amount of each of the first two claims, $18,333.25 on the third, and $746.92 on the fourth, with interest on each of these sums.

The defendant appealed to the Circuit Court of Appeals, which sustained the awards on the first and second claims, wholly rejected the third, reduced the award on the fourth $375.71, and accorded the plaintiff a limited time within which to file a remittitur of the amount awarded on the third claim and of $375.71 of that awarded on the fourth. The remittitur was seasonably filed, and thereupon the Court of Appeals affirmed the judgment of the trial court as modified and reduced by the remittitur. 63 F.(2d) 663.

The case is here on certiorari.

The discussion in the briefs makes it advisable to point out at the outset that we have no occasion to re-examine the third and fourth claims. In the District Court each of these claims was allowed in part and rejected in part. The defendant alone appealed. In the Court of Appeals the third claim was rejected and the award on the fourth reduced. The defendant alone petitioned for a review here. In this situation the plaintiff is not entitled to be heard in opposition to the parts of the decision of the Court of Appeals which were adverse to it, as were the rejection of the third claim and the reduction of the award on the fourth, but only in support of the parts which were in its favor. As to the former, it has acquiesced and become concluded by not seasonably petitioning for a review.¹ And the defendant is not entitled to complain of the parts of the decision which were in his favor, as were the rejection of the third claim and the reduction of the award on the fourth, but only of such as were adverse to him,² as was the refusal wholly to disapprove, or further to reduce, the award on the fourth claim. It is doubtful that the defendant's petition for certiorari contains any real challenge of the ruling of the Court of Appeals on the fourth claim. But, be this as it may, the Solicitor General, speaking for the defendant, in the argument at the bar disclaimed any purpose to ask this Court to re-examine or disturb that ruling. This disclaimer, made on behalf of the only party who then had any semblance of right to ask such a re-examination, eliminated any need for considering the fourth claim just as a like disclaimer in the petition for certiorari would have done. For these reasons it should be understood that the merits of the third and fourth claims are not here under consideration, but are regarded as settled by the decision of the Court of Appeals.

Another matter bearing on the scope of the present examination needs attention. The defendant asks that the evidence be examined in connection with his motion for judgment thereon which was made and denied in the trial court, and the plaintiff answers that this cannot be done because the evidence has not been brought into the record by a proper bill of exceptions. The objections which the plaintiff makes to the bill are that it does not purport to contain all of the evidence, but only such as is material to the defendant's assignment of errors, and that the evidence, both testimonial and documentary, appearing therein, is set out without any attempt at condensation or narration.

Rule 10 of the Court of Appeals,³ like rule 8 of this Court,⁴ provides:

'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 ruling 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.'

The bill, after the usual introductory recitals, contains an agreed statement of particular facts, sets out other evidence produced by the plaintiff and by the defendant, each in turn, and then says, 'This is all the evidence offered and taken at the trial.' Other statements follow to the effect that later on, but before the finding, the court admitted an additional and specified item of evidence to which the parties agreed; that at the close of the evidence the defendant moved for judgment in his favor as to each of the claims because there was not sufficient evidence to support a finding or judgment against him; and that the court denied this motion and the defendant reserved an exception. At the end is a stipulation wherein the parties, through their counsel, agree that the bill contains 'all the evidence material to the defendant's assignment of errors' and all exceptions taken in the course of the trial, and consent that 'the same be settled and filed as the settled bill of exceptions'; and then follows a certificate by the trial judge authenticating and allowing the bill in the same terms that are used in the stipulation. The reference in the stipulation and certificate to 'the defendant's assignment of errors' is explained by the fact that during the period given for the preparation and presentation of the bill the defendant had sought and the trial judge had allowed an appeal to the Circuit Court of Appeals; and with his application for the appeal the defendant had presented and filed an assignment of errors showing the rulings and questions which he intended to present on the appeal; one of the rulings being the denial of his motion at the close of the evidence for judgment thereon in his favor.

A survey of the bill from its beginning to its end shows, we think, that it contains all of the evidence. The statement to that effect in the body of the bill is not overcome or qualified by the statement in the concluding stipulation and certificate that it contains all that is 'material to the defendant's assignment of errors.' When regard is had to the circumstances in which the later statement was made, there is no room to doubt that it was intended to be, and is, as comprehensive as the first. As the defendant's assignment of errors, to which the stipulation and certificate refer, brought in question the sufficiency of the evidence to support the judgment, the conclusion is unavoidable that counsel when entering into the stipulation and the trial judge when giving the certificate understood that all the evidence was material to the solution of that question, and that they used the terms appearing in the stipulation and certificate as comprehending not merely a part of the evidence, but all of it.⁵

It is true that the evidence is set out without any attempt at condensation or narration; but it is also true that the plaintiff expressly consented to the allowance of the bill in this form, and that the Court of Appeals not only made no criticism of the bill, but examined the evidence and rejected the third claim as without necessary evidential support.

The evidence is not of large volume. Besides five pages of stipulated facts, it includes twenty pages of testimony given by three witnesses and thirty pages of documents. Without doubt much of it could have been condensed and narrated without in any wise affecting its purport or substance,⁶ but other parts, particularly some of the documents, are of such a nature that a literal reproduction well might have been regarded as essential to a proper understanding of them.

Of course, the rule relating to condensation and narration should be respected by the bar and by trial judges,⁷ and should be appropriately enforced by appellate courts;⁸ but we are of opinion that in the circumstances here shown the plaintiff is not in a position where it with good grace can complain of the form in which the evidence is set out, and that the infraction of the rule in this instance is not of such extent or moment as to justify us in now declining to regard the evidence as brought into the record by the bill.

We come then to a consideration of the first and second claims. The errors assigned as to them involve the sufficiency of the evidence to support any judgment against the defendant and the sufficiency of the special findings to support the particular judgment rendered thereon. Most...