Bell v. Union Pac. R. Co.

• Decision Date: 04 March 1912
• Docket Number: 3,525.
• Citation: 194 F. 366
• Parties: BELL et al. v. UNION PAC. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

194 F. 366

BELL et al. v. UNION PAC. R. CO.

No. 3,525.

United States Court of Appeals, Eighth Circuit.

March 4, 1912

Eugene J. Hainer, Jerome H. Smith, and Stephen S. Abbott, for plaintiffs in error.

Dorsey & Hodges and E. I. Thayer, for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS Circuit Judge.

This was an action in ejectment, instituted by defendant in error to recover possession of a tract of land in Logan county Colo. After issue was joined, a jury was duly waived, and the cause tried to the court. Evidence was heard, and after plaintiff rested the defendants moved for a judgment in their favor. This motion was denied, and exceptions were duly saved. Defendants, instead of resting their case and standing on their motion, proceeded to introduce evidence in their own behalf of a contradictory character to that offered by plaintiff; but no further or additional motion for a judgment on all the evidence in favor of defendants was afterwards made, and, of course, there was no exception to a refusal to grant such a motion.

'And thereupon the plaintiff rested its case' (in rebuttal). 'And the above and foregoing is all the evidence given offered, or received upon the trial of said cause. And thereupon, and on the same day, the court, being fully advised in the premises, renders judgment in favor of the plaintiff and against the defendants for possession of said property and for costs. To which judgment of the court, and to the entry thereof, the defendants, by their counsel separately, then and there duly excepted, and an exception is allowed, and sixty (60) days from this day is allowed within which to tender bill of exceptions.'

The assignment of errors is as follows:

I. 'That the court erred in not granting a nonsuit in above-named case at the close of plaintiff's evidence, inasmuch as the plaintiff had not shown immediate right of possession to said premises.'

II. 'The court erred in not giving judgment for the defendants, on the ground and for the reason that an action in ejectment and for possession is a possessory action, and no right of possession follows from the proving or establishing of a title.'

III. 'The court erred in holding that the plaintiff had not waived the default alleged, proved, and under which plaintiff attempted to rescind a contract of sale from plaintiff to defendants herein.'

IV. 'The court erred in holding that the defendants had not the equitable right of paying the money into court, or to the plaintiff herein, for each and every amount due plaintiff under contract of sale, and retain possession of the land.'

V. 'The court erred in holding that a default, once acquiesced in, could be used for a forfeiture of contract, without personal notice to the parties in default under such waiver.'

VI. 'The court erred in holding, in substance, that the plaintiff was not required to pursue its remedy by strict common-law foreclosure of the premises involved, including the right of redemption.'

VII. 'The court erred in holding that defendants did not have right of redemption under the law, facts, and evidence of this cause, and the right to pay up all defaults and remain in possession of the land.'

VIII. 'That the verdict, findings, and judgment order and decree were against the law.'

IX. 'That...