Guarantee Co. of North America v. Phoenix Ins. Co.

• Decision Date: 27 July 1903
• Docket Number: 1,857.
• Citation: 124 F. 170
• Parties: GUARANTEE CO. OF NORTH AMERICA v. PHENIX INS. CO. OF BROOKLYN, N.Y.
• Court: U.S. Court of Appeals — Eighth Circuit

124 F. 170

GUARANTEE CO. OF NORTH AMERICA v. PHENIX INS. CO. OF BROOKLYN, N.Y.

No. 1,857.

United States Court of Appeals, Eighth Circuit.

July 27, 1903

Syllabus by the Court.

One who secures by a judgment or decree all the relief he seeks cannot maintain a writ of error of an appeal to reverse or modify it or to review the proceedings on which it is founded.

A defendant in error or appellee who does not sue out a writ of error or take an appeal cannot by assigning cross-errors confer jurisdiction upon a national appellate court to hear or determine any questions not otherwise presented. Cross-errors are not assignable in the federal courts.

After a reversal by an appellate court of a judgment or decree in his favor a defendant in error or appellee may maintain a writ of error or an appeal to review the questions of law arising at the trial in the court below, which were not, and could not have been, litigated upon the first writ or appeal, and to reverse, on account of the errors in the determination of those questions, the judgment or decree directed by the appellate court.

The Circuit Court rendered a judgment in favor of the defendant upon a general verdict and special findings of fact. The plaintiff brought a writ of error to reverse the judgment, on the ground that upon the verdict and findings the judgment should have been in its favor. The appellate court reversed the judgment, and on its mandate the Circuit Court rendered a judgment for the plaintiff. The defendant then sued out a writ of error to reverse this judgment on the ground that the rulings of the court upon the trial were erroneous. Held, the writ was maintainable, because the defendant could not have maintained a writ to challenge the former judgment in its favor, and it could not have assigned the rulings of which it complained as cross-errors under the first writ.

Legal propositions once considered and decided in a given case by the appellate court cannot be again questioned in that court on a subsequent writ or appeal in the same case, whether they are right or wrong. They are res judicata between the parties to that suit and their privies, and constitute the law of the case.

The admission of a servant, the principal in an employe's bond, with respect to matters pertaining to the performance of his guarantied duties, made while he is engaged in their discharge, is competent evidence against the surety on his bond.

The general objections that offered testimony is incompetent and immaterial are sufficient where the ground of the objections is discernible. But they are futile to present a ground of objection that is not perceptible without a statement of it. In a case of the latter class they conceal rather than present the real objection, and hence form no basis for a reversal.

A ruling granting or refusing a peremptory instruction to the jury at the close of the evidence cannot be reviewed in an appellate court in the absence of a bill of exceptions which contains all the evidence which conditioned the ruling.

L. C Cooper and Clency St. Clair (Warren Switzler, on the brief) for plaintiff in error.

H. C Brome (A. H. Burnett, on the brief), for defendant in error.

In Error to the Circuit Court of the United States for the District of Nebraska.

Before SANBORN, THAYER, and VAN DEVANTER, Circuit Judges.

SANBORN Circuit Judge.

This is the second appearance of this case in this court. It is an action brought by the Phoenix Insurance Company of Brooklyn N.Y., against the Guarantee Company of North America, the surety on a bond of Fred S. Kelly, an employe and the cashier of the plaintiff, conditioned to reimburse the latter for all losses, not exceeding $5,000, which it should sustain by reason of any fraudulent act committed by Kelly during the currency of the bond. The case was tried by a jury, which found a general verdict for the plaintiff, and also returned special findings, which consisted of answers to a large number of questions that had been submitted to them. The Circuit Court rendered a judgment in favor of the defendant upon the special findings notwithstanding the general verdict. Thereupon the plaintiff sued out a writ of error to this court, and assigned as error the action of the court in rendering judgment against it upon the verdict and the special findings. The defendant sued out no writ and assigned cross-errors, but in its brief it called attention to certain rulings of the court upon the trial, which it insisted entitled it to a new trial if the judgment in its favor should not be sustained. After argument this court, without treating or mentioning in its opinion the rulings during the trial to which the defendant had called attention in its brief, reversed the judgment of the Circuit Court upon the ground that the special findings were not inconsistent with the general verdict, and directed the court below to render a judgment for the plaintiff. Phoenix Ins. Co. v. Guarantee Co. of North America, 115 F. 964, 53 C.C.A. 360. After the Circuit Court entered a judgment for the plaintiff pursuant to this reversal, the defendant sued out the writ of error now before us, and assigned as error the rulings of the court during the trial before the verdict and the special findings were made.

This condition of the record suggests the query whether the questions raised by the rulings of the court during the trial were not rendered res judicata by the former judgment of this court upon the writ of error sued out by the plaintiff. That judgment, like the final decision of every court which has jurisdiction of the matters and parties it judges, rendered every question which was litigated and every question which might have been raised and determined in this court at the time of the hearing of the former writ of error res judicata between the parties to it. James v. Germania Iron Co., 107 F. 597, 617, 46 C.C.A.

476, 496.

But the first judgment of the Circuit Court granted to the defendant all the relief it sought. It dismissed the action on its merits, and it is only those aggrieved by a judgment or decree that can maintain a writ of error or an appeal to reverse it or to review any of the proceedings upon which it is based. Kinealy v. Macklin, 67 Mo.95, 99; Crawshay v. Soutter and Knapp, 6 Wall. 739, 741, 18 L.Ed. 845; Hayden v. Stone, 112 Mass. 346, 352; Ringgold v. Barley, 5 Md. 186, 59 Am.Dec. 107; Holton v. Ruggles, 1 Root, 318; Raymond v. Barker, 2 Root, 370.

The conclusion is therefore irresistible that the defendant could not have maintained a writ of error to reverse the first judgment of the Circuit Court because it was not aggrieved thereby. And the question for our consideration becomes: Can a defendant in error who cannot maintain a writ of error to reverse a judgment in his favor confer jurisdiction upon a federal appellate court to hear and determine issues of law raised during the trial in the court below, and which are not presented by the assignment of errors of the plaintiff in error by an assignment of cross-errors or otherwise?

In The Maria Martin, 12 Wall. 31, 40, 20 L.Ed. 251, the Supreme Court said:

'Appeals under the additional act 'to amend the judicial system' are subject to the same rules, regulations, and restrictions as are prescribed in case of writs of error. Both parties in a civil action may sue out a writ of error to a final judgment, but where one party exercises the right the other cannot assign error in the appellate court. * * * Where each party appeals each may assign error, but where only one party appeals the other is bound by the decree in the court below, and he cannot assign error in the appellate court, nor can he be heard if the proceedings in the appeal are correct, except in support of the decree from which the appeal of the other party is taken.'

In obedience to the rule thus announced, that court held that a defendant in error who had not prosecuted a writ could not be heard upon cross-errors assigned in Cleary v. Ellis Foundry Co., 132 U.S. 612, 614, 10 Sup.Ct. 223, 33 L.Ed. 473, and in Bolles v. Outing Co., 175 U.S. 262, 268, 20 Sup.Ct. 94, 96, 44 L.Ed. 156, in which the opinion closed with these words:

'It is sufficient to say of these that the defendant did not take out a writ of error, and cannot now be heard to complain of any adverse rulings in the court below. Canter v. American, etc., Ins. Co., 3 Pet. 307, 318 (7 L.Ed. 688); Chittenden v. Brewster, 2 Wall. 191 (17 L.Ed. 839).'

To the same effect is the decision of the Circuit Court of Appeals of the Fifth Circuit in Pauly Jail Bldg. & Mfg. Co. v. Hemphill Co., 10 C.C.A. 595, 600, 62 F. 698, 703.

This rule has also been uniformly observed in cases of appeals in equity (Building & Loan Ass'n v. Logan, 14 C.C.A. 133, 134, 66 F. 827, 828; Clark v. Killian, 103 U.S. 766, 769, 26 L.Ed. 607; U.S. v. Blackfeather, 155 U.S. 180, 186, 15 Sup.Ct. 64, 39 L.Ed. 114); and in cases of appeals in admiralty (The Stephen Morgan, 94 U.S. 599, 24 L.Ed.266). No decisions in the federal courts in which this rule has been disregarded or doubted have been called to our attention, and none have rewarded a diligent search. The rule has been in force so many years that it is not now a matter of reason, but a question of practice. It is to be determined not by an independent consideration and decision of what the rule ought to be, but by a view of the precedents in the national courts which disclose the practice that has been and is prevailing in those courts. The decisions and opinions to which reference has been made disclose the fact that this uniform practice has been and is in accordance with the following rules:

One may not maintain a writ of error or an appeal from a judgment or decree which is so favorable to him that...