Gibson v. Luther

• Decision Date: 10 April 1912
• Docket Number: 3,591,3,615.
• Citation: 196 F. 203
• Parties: GIBSON v. LUTHER et al. LUTHER et al. v. GIBSON.
• Court: U.S. Court of Appeals — Eighth Circuit

196 F. 203

GIBSON v. LUTHER et al.

LUTHER et al. v. GIBSON.

Nos. 3,591, 3,615.

United States Court of Appeals, Eighth Circuit.

April 10, 1912

John F Mail, for Gibson.

John H Voorhees (Robert Cowles, on the brief), for Luthers.

Before VAN DEVANTER, Circuit Justice, ADAMS, Circuit Judge, and RINER, District Judge.

ADAMS Circuit Judge.

Gibson instituted this suit in ejectment to recover from the defendants, George M. and Josephine A. Luther, the possession of six separate tracts of land situated in Kiowa county Colo. The defense was a denial of plaintiff's title or right of possession and an affirmative claim of title in themselves by (1) adverse possession, and (2) the payment of taxes for a period of more than seven successive years immediately preceding the commencement of the suit. There was a replication denying the affirmative matter. Upon issues so joined the case came on for trial before the court; a jury having been duly waived. The court after hearing the evidence of both parties, consisting of records of deeds, tax sale certificate, tax receipts, other documentary evidence, and some oral and written stipulations and concessions of the parties concerning facts, rendered judgment in favor of the plaintiff for the possession of three of the tracts sued for and for the defendants as to the other three tracts. Both parties sued out writs of error challenging the judgments rendered against them, respectively.

As the trial progressed, objections of vital and controlling importance were interposed to the introduction of deeds and other documentary evidence, but these objections were not passed upon by the court, and no exceptions were saved by either party to any adverse ruling thereon. This precludes a review of any of these rulings, as we can act only on exceptions duly saved and assignments of error predicated thereon.

There was an agreement between counsel that they might proceed with the introduction of their evidence, making formal objections as they went along, to such as they desired to object to, and 'that the court should reserve its ruling and take all matters up in the general argument. ' Whether this agreement contemplated that the court should make definite rulings on the specific objections made or should make a comprehensive ruling after the final argument, in the judgment rendered, is uncertain. On this subject the agreement is not clear. It does not appear that the court consented to this arrangement of counsel. On the contrary, it appears that neither party ever asked or insisted that the court rule on the objections so made, and it appears that the court never did rule on them, except as its view of them might be inferred from the judgment ultimately rendered in the case.

Objections of this kind, unaccompanied by rulings or exceptions, present nothing for review by an appellate court. In the case of Ogden City v. Weaver, 47 C.C.A. 485, 488, 108 F 564, 567, which was an action at law in which a former decree in a state court had been offered in evidence, Judge Thayer, speaking for this court, said:

'The record and decree in the case pending in the state court seem to have been offered below; that is to say, by Ogden City. They were objected to at the time by the receiver, and the bill of exceptions recites that they were admitted 'subject to objection,' the trial court undertaking to rule on their admissibility afterwards. We are not advised by the bill of exceptions whether they were eventually admitted or rejected. Neither are we informed except by the opinion of the trial judge, which, as already stated, forms no part of the record, what the view of the trial court was with respect to the finality of the decree. In this condition of the record, we might well decline to notice the contention above stated,' etc.

In the case of Fidelity & Casualty Co. v. Thompson, 83 C.C.A. 324, 325, 154 F. 484, 485 (11 L.R.A. (N.S.) 1069, 12 Ann.Cas. 181), in which two motions for a directed verdict were made, one at the close of plaintiff's evidence and the other at the close of all the evidence, Mr. Justice Van Devanter, then Circuit Judge, speaking for this court, said:

'The second motion was also waived, because a direct ruling thereon was not insisted upon, and no exception was reserved in that connection'-- citing Newport News, etc., Co. v. Pace, 158 U.S. 36, 15 Sup.Ct. 743, 39 L.Ed. 887, and National Bank of Boyertown v. Schufelt, 76 C.C.A. 187, 145 F. 509.

The doctrine of the foregoing cases is fully supported by the case cited from the Supreme Court (Newport News, etc., v. Pace) wherein the late Chief Justice, speaking for that court, said:

'Errors are assigned to the admission of evidence

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