Francisco v. Chicago & A.R. Co.

• Decision Date: 23 November 1906
• Docket Number: 2,225.
• Citation: 149 F. 354
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: FRANCISCO v. CHICAGO & A.R. CO.

149 F. 354

FRANCISCO v. CHICAGO & A.R. CO.

No. 2,225.

United States Court of Appeals, Eighth Circuit.

November 23, 1906

(Syllabus by the Court.)

No writ of error will lie at the suit of a plaintiff to review a judgment of nonsuit or dismissal rendered in a national court at his request or with his consent. Such a judgment, however rendered on the motion of the defendant and against the objection and the protest of the plaintiff is reviewable at the latter's instance.

At the close of a trial the defendant moved the court to instruct the jury to return a verdict in its favor, and its motion was granted. But before the instruction was given the plaintiff asked, and was granted, leave by the court to take an involuntary nonsuit, and a judgment was rendered accordingly. Held, the nonsuit was entered with the consent and at the request of the plaintiff, and no writ of error could be maintained at his suit to review it. Describing it by a false epithet did not change its character.

The act of conformity (section 914, Rev. St. (U.S. Comp. St. 1901, p 684)) has no application to the practice or proceedings of appellate courts or to matters relating to bills of exceptions, motions for new trials, or any other means adopted to secure a review of the judgments or decrees of the Circuit or District Courts. Its effect is limited to the practice and proceedings in the trial courts to secure their judgments.

The power and practice of the federal appellate courts are derived exclusively from the Constitution, the acts of Congress, the common law, the ancient English statutes, and the rules and practice of the courts of the United States and they are neither controlled nor affected by the statutes of the states or the practice of their courts.

I. N. Watson and D. V. Herider, for plaintiff in error.

Edward L. Scarritt, William C. Scarritt, and Elliott H. Jones, for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN Circuit Judge.

The plaintiff below is the plaintiff in error here. He brought an action against the defendant to recover $5,000 damages for the negligent killing of George L. Gerew. The defendant denied its liability. There was a trial of the issues before a jury. At the close of the evidence the defendant moved the court to instruct the jury that under the pleadings and evidence they must find a verdict for the defendant. The court granted the motion, and the plaintiff excepted. But before the jury were actually instructed the plaintiff prayed leave of the court to take an involuntary nonsuit. The court granted him permission and a judgment was rendered accordingly. Subsequently the plaintiff moved the court to set aside this judgment of nonsuit and to grant a new trial of the action, and this motion was denied. He has sued out this writ of error to secure a reversal of this judgment of nonsuit on account of numerous alleged errors in the trial of the action, and especially because the court held that the evidence was insufficent to sustain his cause of action and that the defendant was entitled to a verdict thereon.

But invited error is irremediable. If the court erred in the rendition of the judgment of nonsuit, it erred at the plaintiff's request and to the prejudice of the defendant, and that error can form no ground for the reversal of the judgment at the suit of the plaintiff who procured it. A judgment of nonsuit upon the motion or request of the defendant and against the objection or protest of the plaintiff is reviewable by writ of error. Central Transp. Co. v. Pullman's Car Co., 139 U.S. 24, 29, 39, 40, 11 Sup.Ct. 478, 35 L.Ed. 55; Meehan v. Valentine, 145 U.S. 611, 614, 618, 12 Sup.Ct. 972, 36 L.Ed. 835.

But a judgment of nonsuit on the motion, at the request or with the consent of the plaintiff, is not reviewable by writ of error at his suit, because he is estopped from convicting the trial court of an error which he requested it to commit. U.S. v. Evans, 5 Cranch(U.S.) 280, 3 L.Ed. 101; Evans v. Phillips, 4 Wheat. (U.S.) 73, 4 L.Ed. 516; Central Transp. Co. v. Pullman's Car Co., 139 U.S. 24, 39, 11 Sup.Ct. 478, 35 L.Ed. 55; Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 606, 14 Sup.Ct. 458, 38 L.Ed. 279; Avendano v. Gay, 8 Wall. (U.S.) 376, 377, 19 L.Ed. 422; U.S. v. St. Louis, etc., Trans. Co., 184 U.S. 247, 249, 22 Sup.Ct. 350, 46 L.Ed. 520. In U.S. v. Evans, 5 Cranch (U.S.) 280, 3 L.Ed. 101, the trial court rejected certain evidence offered by the attorney of the United States. He took a bill of exceptions, became nonsuit, and moved the court to set aside the nonsuit and to grant a new trial. His motion was denied, and he sued out a writ of error to reverse the judgment. Chief Justice Marshall said that in such a case, where there has been a nonsuit, and a motion to reinstate overruled, the court could not interfere, and the judgment was affirmed. In Evans v. Phillips, 4 Wheat. (U.S.) 73, 4 L.Ed. 516, the plaintiff submitted to a nonsuit in the court below and the Supreme Court held that he could not secure a review of that judgment because he had consented to it, and dismissed the writ. In Central Transp. Co. v. Pullman's Car Co., 139 U.S. 24, 29, 38-40, 11 Sup.Ct. 478, 35 L.Ed. 55, and Meehan v. Valentine, 145 U.S. 611, 614, 618, 12 Sup.Ct. 972, 36 L.Ed. 835, the defendants moved for, and secured, judgments of nonsuit against resisting plaintiffs, and the Supreme Court held that the latter might maintain writs of error to review them. But in rendering this decision that court was careful to distinguish these cases from those in which the plaintiffs themselves consent to or procure the judgments, and it said:

'It is true that a plaintiff, who appears by the record to have voluntarily become nonsuit, cannot sue out a writ of error. United States v. Evans, 5 Cranch (U.S.) 280, 3 L.Ed. 101; Evans v. Phillips, 4 Wheat. (U.S.) 73, 4 L.Ed. 516; Cossar v. Reed, 17 Q.B. 540. But in the case of a compulsory nonsuit it is otherwise; and a plaintiff, against whom a judgment of nonsuit has been rendered without his consent and against his objection, is entitled to relief by writ of error.' 139 U.S. 39, 11 Sup.Ct. 478, 35 L.Ed. 55.

In Koons v. Bryson, 16 C.C.A. 227, 69 F. 297, the Circuit Court of Appeals of the Fourth Circuit failed to note this radical distinction and to observe that the conformity act (section 914, Rev. St. (U.S. Comp. St. 1901, p. 684)) has no application to methods of review or to proceedings in the federal appellate courts, and was thereby led to the conclusion that a plaintiff might maintain a writ of error to review a judgment of nonsuit which he had himself requested-- a conclusion which the decisions of the Supreme Court to which reference has been made and the reasons for the rule thereby established forbid us to follow. But the same court in later decisions in Huntt v. McNamee, 141 F. 293, 72 C.C.A. 441, and Parks v. Southern Ry. Co., 143 F. 276, reversed its former holding and recognized the rule adopted by the Supreme Court and the fact that the act of conformity has no application to the practice or proceedings of the federal appellate courts. In the former case Judge Goff, speaking for the court, said:

'Where the record disclosed that the plaintiff had voluntarily become nonsuited, a writ of error was refused him. Evans v. Phillips, 4 Wheat. (U.S.) 73, 4 L.Ed. 516; Cossar v. Reed, 17 Q.B. 540; Central Transportation Co. v. Pullman's Car Co., 139 U.S. 24, 39, 11 Sup.Ct. 478, 35 L.Ed. 55.'

In Parks v. Southern Ry. Co., 143 F. 276, a case which arose in North Carolina, where, in the state courts, a plaintiff may take a nonsuit at any time before verdict, the defendant at the close of the evidence had moved the court to instruct the jury to return a verdict in his favor, and the court had sustained the motion. Plaintiff then moved for leave to take a nonsuit. The court denied his motion and instructed the jury to return a verdict for the defendant. The Circuit Court of Appeals held that, when the motion to instruct the jury for the defendant was made, the plaintiff was put to his election to then take his nonsuit or to submit the whole case upon the motion to instruct, that the motion for leave to take a nonsuit after the decision upon the motion to instruct came too late, and that there was no error in the subsequent refusal of the court to grant the nonsuit. While a different rule has been established in this circuit in cases coming from Missouri, in deference to a statute of that state and in conformity to the practice in its trial courts (Chicago, M. & St. P. Ry. Co. v. Metalstaff, 41 C.C.A. 669, 101 F. 769), the opinion in the Parks Case contains a statement of the duty of courts to respect the rights of defendants, as well as plaintiffs, to a lawsuit, to make an end of litigation and to prevent the abuse of the means of administering justice by the trial of experiments upon the courts with defective causes of action, which strongly appeals to our judgment and presents a persuasive argument in support of the rule under consideration. Judge Pritchard said:

'It is highly important that the court in the exercise of its discretion should not only see that equal and exact justice is done between litigants, but it is equally important that needless litigation should be speedily determined, and in the trial of cases the court should consider the rights of the defendant as well as those of the plaintiff, and, where it appears that all the evidence which it is possible to obtain has been offered and the case has been submitted to the jury or to the court, it is the duty of the court, if in its opinion the evidence is not sufficient to justify a verdict in favor of the plaintiff, to direct the jury to return a verdict in favor of the defendant.

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