Chicago Great Western R. Co. v. Le Valley

Decision Date18 April 1916
Docket Number4459.
Citation233 F. 384
PartiesCHICAGO GREAT WESTERN R. CO. v. LE VALLEY.
CourtU.S. Court of Appeals — Eighth Circuit

Donald Evans, George H. Carr, and Fred P. Carr, all of Des Moines Iowa, for plaintiff in error.

E. P Andrews and B. H. Mallory, both of Hampton, Iowa, for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and TRIEBER, District judge.

SANBORN Circuit Judge.

The motion for rehearing in this case presents but a single question, and that is whether or not the motion for a directed verdict, the denial thereof, and the exception to that ruling were so presented to this court in the transcript that under the rules and practice of the federal courts this court could lawfully take cognizance of the ruling and exception, and, if the former was erroneous, correct it. The action was for damages for the death of an employe of the railroad company. It was tried by a jury, and a judgment against the company resulted. The transcript contained a copy of a bill of exceptions, which recited the evidence at the trial, but contained no reference to or recital of the motion for a directed verdict, the ruling thereon, or the exception thereto; but in a copy of the journal of the proceedings of the court during the trial, set forth in the transcript there appeared a recital that in the course of the trial, upon the consideration of defendant's filed motion at the conclusion of its evidence to direct the jury to return a verdict for it, the motion was denied, and the defendant excepted, and a copy of the filed motion to direct a verdict for the defendant appears in the transcript. When the case came on for argument, this court was of the opinion that it was essential to its cognizance of the motion, ruling, and exception that they should have been embodied in a bill of exceptions certified by the trial judge over his signature, and for that reason the court disregarded this ruling and exception and affirmed the judgment below. Counsel for the railroad company contend that herein was error, and that the motion, ruling, and exception were sufficiently presented to this court by the copy of the record of the proceedings of the day in the journal of the proceedings.

They concede that an exception to the ruling of the court was indispensable to its review, and the question is whether or not a recital of this ruling and of the exception in the journal of the proceedings, without the embodiment of them and the written motion in a bill of exceptions, is sufficient to invoke the jurisdiction of the appellate court to review the ruling. In support of an affirmative answer to this question counsel cite St. Joseph Stockyards Company v. United States, 187 F. 104, 105, 110 C.C.A. 432, 433; but the question here at issue was not presented or decided in that case, for the issue there was whether or not a special finding of the court sustained the judgment rendered thereon, and that issue arises upon the special finding without objection or exception thereto. Worthington v. McGough, 192 F. 512, 513, 112 C.C.A. 662, 663. In that case at the close of the trial, on the motion of the plaintiff, a juror was withdrawn and the case was dismissed without prejudice to another action, and no exception was taken or bill of exceptions made, and the appellate court reviewed the action of the trial court. But in that case the entire action of the court was recited upon the face of the judgment entry, and the court held that the action of the court thereby fully appeared as a part of the record, and that no exception was required to enable the court to review it, citing Chicago, Rock Island & Pacific Ry. Co. v. Barrett, 190 F. 118, 123, 111 C.C.A. 158. 163. When, however, the latter case is examined, it will be found that it does not sustain that conclusion, nor an affirmative answer to the question here at issue.

The court merely held in that case that a special finding of facts by the trial court in a case in which a jury had been waived is a part of the record itself, and that without objection, exception, or bill of exceptions the finding presents for review under section 700 of the Revised Statutes (Comp. St. 1913, Sec. 1668) the question whether or not it supports the judgment rendered upon it. Denver v. Home Savings Bank, 236 U.S. 101, 103, 104, 35 Sup.Ct. 265, 59 L.Ed. 485. But that case arose upon a demurrer to a defense in an answer. It fails to rule the issue in hand, because it rests on the established and familiar rule that no exception or bill of exceptions is required to present to an appellate court for review a ruling upon a demurrer to a pleading. Nalle v. Oyster, 230 U.S. 165, 167, 33 Sup.Ct. 1043, 57 L.Ed. 1439. In Nalle v. Oyster, the Supreme Court said:

'The practice of bills of exception is statutory. By the ancient common law a writ of error lay only for an error in law apparent upon the judgment roll--what is now called the 'strict record'-- or for an error in fact, such as the death of a party before judgment. See Green v. Watkins, 6 Wheat. 260, 262 (5 L.Ed. 256). For an erroneous decision that did not appear upon the record there was no redress by writ of error.'

What is necessary to be done in a District Court of the United States to render rulings reviewable is determined exclusively by the statutes of the United States, and, if they be silent, by the common law and the practice prevailing in the courts of the United States. Chateaugay Iron Co., Petitioner, 128 U.S. 544 553, 555, 9 Sup.Ct. 150, 32 L.Ed. 508; St. Clair v. United States, 154 U.S. 134, 153, 14 Sup.Ct. 1002, 38 L.Ed. 936; Ghost v. United States, 168 F. 841, 843, 94 C.C.A. 253, 255. A federal appellate court considers only such matters as appear in the record. 'From time immemorial,' says the Supreme Court, 'that has been held to include the pleadings, the process, the verdict, and the judgment, and such other matters as by some statutory or recognized method have been made a part of it. ' Metropolitan Railroad Co. v. District of Columbia, 195 U.S. 322, 332, 25 Sup.Ct. 28, 32 (49 L.Ed. 219). Exceptions to the rulings of the court in the course of the trial of a case, exceptions to the rulings of the court upon motions conditioned upon the evidence, may be made a part of the record by...

To continue reading

Request your trial
26 cases
  • Vance v. Chapman
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 10 Enero 1928
    ...to strike out pleadings, as well as rulings on motions based on the evidence, or requests for instructions." Chicago Great Western Ry. Co. v. Le Valley (C. C. A. 8) 233 F. 384; Pomeroy's Lessee v. Bank of Indiana, 1 Wall. 592-599; Young v. Martin, 8 Wall. 354-356, 19 L. Ed. 418; Michigan In......
  • Wainer v. United States, 6035.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 6 Enero 1937
    ...upon motions, oral or written (Pauchet v. Bujac C.C.A. 281 F. 962; Ana Maria Sugar Co. v. Quinones C.C.A. 251 F. 499; Chicago G. W. R. Co. v. Le Valley C.C.A. 233 F. 384); including motions for continuance (Patterson Oil Co. v. Brodhead C.C.A. 2 F.(2d) 598); for bills of particulars (Ghost ......
  • McCuing v. Bovay
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 1 Agosto 1932
    ...or evidence and rulings on written or oral requests for instructions to the jury founded upon evidence." Chicago Great Western R. Co. v. Le Valley (C. C. A.) 233 F. 384, 387. See, also, 28 USCA § 776; Vance v. Chapman, supra; Pistillo v. United States (C. C. A.) 26 F.(2d) 202; Pomeroy's Les......
  • United States v. Johnson
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 9 Agosto 1938
    ...not governed by the Conformity Act, 28 U.S.C.A. § 724. Camp v. Gress, 250 U.S. 308, 39 S.Ct. 478, 63 L.Ed. 997; Chicago Great Western R. Co. v. Le Valley, 8 Cir., 233 F. 384; Burke Grain Co. v. St. Paul-Mercury Indemnity Co., 8 Cir., 94 F.2d In the last-cited case we held that appellant had......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT