Cudahy Packing Co. v. City of Omaha

• Decision Date: 14 March 1928
• Docket Number: No. 7478.,7478.
• Citation: 24 F.2d 3
• Parties: CUDAHY PACKING CO. v. CITY OF OMAHA et al.
• Court: U.S. Court of Appeals — Eighth Circuit

24 F.2d 3 (1928)

CUDAHY PACKING CO. v. CITY OF OMAHA et al.

No. 7478.

Circuit Court of Appeals, Eighth Circuit.

January 10, 1928.

Rehearing Denied March 14, 1928.

Yale C. Holland, of Omaha, Neb. (Thomas Creigh, of Chicago, Ill., and J. A. C. Kennedy, George L. De Lacy, and Charles F. McLaughlin, all of Omaha, Neb., on the brief), for plaintiff in error.

John Lee Webster, of Omaha, Neb. (Dana B. Van Dusen, of Omaha, Neb., on the brief), for defendants in error.

Before VAN VALKENBURGH, Circuit Judge, and REEVES and OTIS, District Judges.

VAN VALKENBURGH, Circuit Judge.

In 1903 the Legislature of the state of Nebraska passed an act (Laws 1903, c. 17) which, in effect, required the city of Omaha to buy or build a system of waterworks. The plant in Omaha, embracing works in South Omaha, was then owned and operated by the Omaha Water Company. March 2, 1903, engineers were appointed to appraise the value of said system of waterworks as a preliminary to the purchase thereof by the city. June 1, 1904, the Omaha Water Company entered into a contract with the Cudahy Packing Company, under the terms of which plaintiff in error was to receive water at 4½ cents per thousand cubic gallons for a period of 10 years from date. In view of the impending purchase of the waterworks by the city, and uncertainty in the minds of the contracting parties as to the power of the city over rates as affecting existing contracts, and as to what the policy of the city might be in that regard, all previous contracts between the water company and plaintiff in error, and between the company and others similarly situated, had contained a clause providing that such contract should terminate upon acquisition of the plant by the city. This lastnamed contract between the water company and the Cudahy Company on its face did not contain that clause.

Thereafter the purchase of the water plant by the city was consummated. The deed to the city was dated June 20, 1912, and filed for record July 1, 1912. That deed contained the following clause: "Subject, nevertheless, to the obligations entered into by the said Omaha Water Company with private consumers in said city of Omaha, and in the cities of South Omaha * * * and with said municipalities under or by virtue of any of the ordinances, agreements, and arrangements heretofore set forth."

The contract between plaintiff in error and the water company had then still 2 years to run. Upon assuming control of the works on behalf of the city, the water board of Omaha raised the rates to plaintiff in error, and those similarly situated, from 4½ cents to 8 cents per thousand cubic gallons. Preceding this action there were hearings before the board in which representatives of plaintiff in error appeared. The finding was that the city could not furnish water at 4½ cents per thousand gallons without loss, and that a rate of 8 cents was essential. Plaintiff in error protested against this raise in rate, paid the increase under protest, and at the close of the 2-year period brought this action to recover the excess paid over the contract rate.

At the trial the District Court directed a verdict against the packing company on the ground that the water company could not bind itself to any private consumer by contract in such manner as to affect the right of the state under its police power to control the rates charged. This was the main ground of contention in that trial. This court reversed that judgment, holding that the city, under its power to purchase the waterworks system and to pay therefor, had full power and authority to agree, as a part of the consideration, that it would carry out and perform the contractual obligations of the water company. 277 F. 49.

At the second trial some amendments were made to its pleadings by the city, the nature of which we think it unnecessary here to consider. They were not deemed sufficient to alter the issues resolved by the opinion of this court, and a judgment was directed, this time in favor of plaintiff in error, in the sum of $81,244.96. This judgment was entered December 13, 1923. A new feature in the testimony of this second trial was that Mr. Theodore C. Woodbury, former president of the water company, testified that at the time the Cudahy contract came up he observed that the termination clause, to which reference has been made, was absent. He had understood that an agreement had been procured whereby the water company would be held harmless as against any claim of the packing company if the city should advance the rates beyond the 4½-cent rate. He understood that Mr. Fairfield, general manager of the company, had this agreement. Defendants in error were granted 42 days in which to file a motion for new trial. The motion was filed January 10, 1924, and thereafter orders were obtained continuing the presentation and hearing of this motion until the April term, 1924. On May 10th, within said April term, counsel for defendants in error asked leave to amend their motion for new trial, setting up evidence newly discovered since the trial of the cause, and to file the affidavits of E. M. Fairfield and Alonzo B. Hunt in support thereof. These affidavits were to the effect that an undertaking was given by the Cudahy Packing Company to protect the water company against any liability due to the change of ownership incidental to the acquisition of the plant by the city. To this proposed amendment, and these affidavits, objections were filed, but were overruled, and a new trial was granted.

At this last trial, from the resulting judgment in which this writ is prosecuted, defendants in error introduced testimony of former officers of the water company to the effect that a supplemental agreement in writing had been entered into between the Cudahy Company and the water company, whereby the water company was held harmless and released from further obligation in the event that the city, upon acquiring the plant, should raise the rates above the contract price. To the competency, relevancy, and materiality of this testimony plaintiff in error duly excepted, and at the close of all the evidence moved for a directed verdict in its favor. At the conclusion of the discussion which followed, defendants in error likewise moved for a directed verdict. The court thereupon overruled plaintiff in error's motion, and sustained that of the defendants in error, pursuant to which judgment was entered in behalf of defendants in error.

We are met first by the motion of defendants in error to strike from the record the bill of exceptions and to dismiss the case. In this motion two bills of exception are referred to — the one incorporating the proceedings at the first of the last two trials wherein a verdict was instructed for plaintiff in error, but in which the motion for new trial was granted; and the second, for the proceedings at the last trial from which this writ is prosecuted. The claim is made that the proceedings at the first of these trials cannot be considered, because a bill of exceptions was not filed within the term, nor within any extension thereof. This point is clearly without merit, for the reason that there was no final judgment until in the second trial. At that trial all the evidence in the former case was considered, and upon the insistence of defendants in error was incorporated within the bill here presented. In fact, at the argument counsel for defendants in error conceded that the two bills, if such they may be called, were tied together and consolidated by the proceedings at the second trial. Therefore we have in effect but one bill of exceptions.

Counsel for defendants in error contend that this bill was not filed in time, and therefore cannot be considered. The hearing upon motion for new trial filed by plaintiff in error was continued from time to time until March 5, 1926, on which date the motion was overruled. Sixty days were granted to plaintiff in error within which to file a bill of exceptions. The term in which this order was made expired April 3, 1926. The bill of exceptions, a very lengthy one, was prepared and tendered on April 30, 1926, at which time both parties appeared by attorneys. Counsel for defendants in error objected to the filing of the bill until they had had sufficient opportunity to examine it. The court, therefore, suggested that the time for filing be extended for this purpose. Counsel for plaintiff in error, being satisfied that such extension could be made, consented. The court assured them that it would make an order extending the time, and prior to the expiration of the original period entered the following order: "For good cause shown, it is ordered that the time in which to file the transcript on writ of error in the Circuit Court of Appeals, Eighth Circuit, be and the same is hereby enlarged for a period of 30 days from and after May 4, 1926."

Upon examination counsel for defendants in error requested that the proceedings at the first trial be set out in full and not by reference; this was done. The bill was approved and filed May 29, 1926. At this time counsel for defendants in error objected and excepted, on the ground that the bill was not filed within the time allowed by any order of court, nor by one within the power of the court to grant. Counsel evidently rely upon the principle announced by the Ninth Circuit in Anderson et al. v. United States (C. C. A.) 269 F. 65: "After the expiration of the term at which a judgment was rendered and of any extended time allowed by rule of court for settling a bill of exceptions, the court is without jurisdiction to grant any further extension of time, and such jurisdiction cannot be conferred by consent of counsel" — citing, among other cases, O'Connell v. United States, 253 U. S. 142, 40 S. Ct. 444, 64 L. Ed. 827.

In the latter case the Supreme Court held that, where a standing rule of a District Court extended the term for the purpose of making and filing bills of exception, and...