Denver Live Stock Commission Co. v. Lee

• Decision Date: 17 March 1927
• Docket Number: No. 7435.,7435.
• Citation: 18 F.2d 11
• Parties: DENVER LIVE STOCK COMMISSION CO. et al. v. LEE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

18 F.2d 11 (1927)

DENVER LIVE STOCK COMMISSION CO. et al. v. LEE et al.^*

No. 7435.

Circuit Court of Appeals, Eighth Circuit.

March 17, 1927.

Norton Montgomery, of Denver, Colo. (Leslie E. Greene, Gerald Hughes and C. C. Dorsey, all of Denver, Colo., on the brief), for plaintiffs in error.

Ray E. Lee, of Cheyenne, Wyo. (Corbin E. Robison and Lewis G. Johnson, both of Ft. Morgan, Colo., on the brief), for defendants in error.

Before KENYON, Circuit Judge, and SCOTT and SANBORN, District Judges.

JOHN B. SANBORN, District Judge.

The defendants in error have moved to strike out the bill of exceptions in this case and to dismiss the writ of error. The case was tried in Denver, and on August 14, 1925, a general finding was made in favor of the defendants in error, and judgment was entered. A writ of error was allowed, and the citation issued November 14, 1925, returnable on January 13, 1926. On January 30, 1926, the District Judge entered an order extending the time for filing the record and docketing the proceedings in error for a period of 60 days. On March 5, 1926, another order was made extending the time to May 1, 1926. The record was docketed in the Circuit Court of Appeals on April 16, 1926. The first bill of exceptions was allowed by the court on the 28th day of October, 1925, and consisted of a transcript of the testimony and proceedings. On March 5, 1926, another bill of exceptions, in which the testimony was set forth in narrative form, was approved. The defendants in error object to the first bill of exceptions, on the ground that it did not constitute a proper bill under the decision in Marr v. United States (C. C. A.) 8 F.(2d) 231, and on the further ground that it was not approved and allowed at the same term of court at which the judgment was entered.

While a complete transcript of the testimony and proceedings upon a trial is not a true bill of exceptions (Marr v. United States, supra; Linn v. United States C. C. A. 251 F. 476, 483) it does contain everything necessary to a determination of the questions sought to be reviewed. The trouble with it is that it ordinarily contains a great mass of matter which has no bearing upon the errors assigned, and which is of no benefit to any one except the printer. In this particular case, the transcript of testimony is not particularly voluminous, and counsel for the plaintiffs in error, after the decision in the case of Marr v. United States, supra, was published, did what they could to comply with the wishes of this court, as therein expressed, by preparing and having allowed as a bill of exceptions a transcript of the testimony and proceedings in narrative form, eliminating unessential matters. We see no justification for striking this bill from the record.

Section 73 of the Judicial Code, as amended by the Act of June 12, 1916, c. 143 (section 1058, U. S. Compiled Statutes), provides: "The state of Colorado shall constitute one judicial district, to be known as the district of Colorado. Terms of the District Court shall be held at Denver on the first Tuesday in May and November; at Pueblo on the first Tuesday in April; at Grand Junction on the second Tuesday in September; at Montrose on the third Tuesday in September, and at Durango on the fourth Tuesday in September."

After judgment in this case was entered and before the bill of exceptions was allowed, terms at Grand Junction, Montrose, and Durango had intervened. The claim of the defendants in error is that, for that reason, the May term at Denver had terminated before October 28, 1925, and the order of that date, allowing the bill of exceptions, was ineffectual. This contention cannot be sustained. If it was correct, the term at Pueblo, which commences on the first Tuesday in April, would terminate the first Tuesday in May with the commencement of the Denver term; that term would terminate on the second Tuesday in September, when the term at Grand Junction begins; and that term would end one week later with the beginning of the term at Montrose, which would also be only a one-week term, because of the term at Durango on the fourth Tuesday in September. Under a reasonable construction of the statute, the term of the District Court which commences at Denver on the first Tuesday in May terminates with the commencement of the November term at Denver on the first Tuesday of that month, unless it be sooner terminated by an order of the court. Harlan v. McGourin, 218 U. S. 442, 450, 31 S. Ct. 44, 54 L. Ed. 1101, 21 Ann. Cas. 849; East Tennessee Iron & Coal Co. v. Wiggin (C. C. A.) 68 F. 446, 447; Ex parte Harlan (C. C.) 180 F. 119, 132; In re Stevenson (C. C.) 125 F. 843, 848. It is therefore apparent that the first bill of exceptions was filed and allowed at the same term of court at which the judgment was entered.

The second bill of exceptions, which was not approved or allowed until March 5, 1926, was not within the term, and, for that reason, cannot be considered as the bill in this case.

As to the claim that the record was not docketed in accordance with rule 16 of this court, it has been held that the court may permit the docketing of a case after the time required by this rule. Midland Terminal Ry. Co. v. Warinner (C. C. A.) 294 F. 185. While the situation here presented might justify the court in doing what it is asked to do by the defendants in error, we are of the opinion that we have jurisdiction to consider the questions presented on this writ of error, and that the motion to dismiss should be denied.

This action was commenced in the District Court of the state of Colorado for the county of Denver, by the defendants in error — who will be hereinafter referred to as plaintiffs — against the plaintiffs in error, as defendants, for the purpose of recovering the value of 19 steers and 17 cows, which were of the value of $3,230.56, and which the plaintiffs claim the defendants had converted. The case was removed to the United States District Court for the District of Colorado. There was a general demurrer to the complaint, which the court overruled. Issues were joined, a jury was waived, the case was tried to the court, and on August 14, 1925, a general finding was made in favor of the plaintiffs and against the defendants, and judgment was entered thereon.

There are 21 assignments of error, but the only questions argued in the brief relate to: (1) The overruling of the demurrer. (2) The sufficiency of the evidence to justify the conclusion that the cattle sold on July 29, 1919, were cattle covered by the mortgage of the plaintiffs; that the defendants had notice of that fact; and that the indebtedness secured by the chattel mortgage has not been paid. (3) The refusal of the court to make special findings of law and fact as requested. The other questions raised by the assignments of error are therefore waived. Braden v. United States (C. C. A.) 270 F. 441, 442; Weare v. United States (C. C. A.) 1 F.(2d) 617, 618; Apt v. United States (C. C. A.) 13 F.(2d) 126, 127; Daniel v. Pappas, 16 F.(2d) 880.

The questions as to the sufficiency of the evidence cannot be considered, because the defendants failed, before the case was submitted, to make a request for specific findings of fact and declarations of law in their favor. The record shows that, after both sides had finally rested, the case was argued orally to the court. The record then recites:

"After the close of the evidence and the arguments of counsel in the within entitled cause, the court took the case under advisement and permitted the respective counsel to make additional argument by way of briefs; that pending the consideration of said case by the court, and at the time the brief for defendants was filed, the defendants made written request for findings of law and fact, said request being filed with the clerk of the court, and which, omitting the caption and title, is in words and figures as follows:

"`Request of Defendants for Findings of Law and Fact.

"`Come now the above-named defendants, the Denver Live Stock Commission Company and Swift & Co., and hereby request the court that, in rendering and making its judgment in the above-entitled cause, which has been submitted to the court, said court make specific findings of law and fact upon the following issues included in said cause as follows:

"`Findings of Law.

"`(1) As to whether or not said complaint in said cause states facts sufficient to constitute a cause of action against the defendants, the Denver Live Stock Commission Company and/or Swift and Company.

"`(2) As to whether or not the complaint in said cause or the pleadings in said cause are sufficient to show that the mortgagor, Oliver Gerkin, in said action was the owner of the cattle involved at the time the said mortgage was given.

"`(3) As to whether or not there was a misjoinder of parties defendant in said cause.

"`(4) As to whether or not the note for which the mortgage of April 30, 1919, was given to secure, has been paid.

"`(5) As to whether as a matter of law the description contained in said mortgage of April 30, 1919, is a legal description of the cattle attempted in said mortgage to be described, and further, as to whether or not the brand contained in said mortgage is the same brand as the evidence shows was the brand of said Oliver Gerkin.

"`Findings of Fact.

"`(1) Is it shown by the evidence how many cattle belonged to Oliver Gerkin at the time of giving of the mortgage of April 30, 1919, and which were located at his ranch or near his ranch east of Deer Trail, in Arapahoe county, Colorado, and, if so, how many?

"`(2) Does the evidence show the number of cattle owned by the said Oliver Gerkin in the same locality or vicinity as referred to in the provision requested branded with the

z brand o

"`(3) As to whether or not the note, Plaintiffs' Exhibit B, has been paid prior to the commencement of this action.

"`(4) As to whether or not the description given in said mortgage of April 30,...