Highway Trailer Co. v. City of Des Moines, Iowa
| Decision Date | 03 April 1924 |
| Docket Number | 6488. |
| Citation | 298 F. 71 |
| Parties | HIGHWAY TRAILER CO. v. CITY OF DES MOINES, IOWA. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Frank S. Dunshee, of Des Moines, Iowa (Dunshee & Brody, of Des Moines, Iowa, on the brief), for plaintiff in error.
John J Halloran, of Des Moines, Iowa (Reson S. Jones and Chauncey A Weaver, both of Des Moines, Iowa, on the brief), for defendant in error.
Before SANBORN, Circuit Judge, and BOOTH and REEVES, District Judges.
This is an action at law for $8,976, the purchase price of specified vehicles and their accessories, which the plaintiff, the Highway Trailer Company, a corporation, alleged in its complaint that the defendant, the city of Des Moines, on January 19, 1922, ordered it to deliver to the city, and which the plaintiff alleged that it did deliver to the city on March 3, 1922. The plaintiff also alleged that the city accepted and used these vehicles and their accessories.
The city by its answer admitted that on January 19, 1922, an order purporting to be made by the city was delivered to the plaintiff; but it averred that this was not a lawful or binding order of the city, because the resolution of the city council purporting to authorize it did not 'remain on file with the city clerk for public inspection at least one week before the final passage or adoption thereof,' as required by section 1056a30 of the Supplement to the Code of Iowa, 1913, and because the alleged contract would, if made have been in violation of section 668 of the Supplement to the Code of Iowa, 1913, on account of the lack of the indispensable appropriations required to warrant its execution and delivery. The defendant also denied, by its denial of all the averments of the complaint not admitted that the plaintiff had ever delivered, or that the defendant had ever received or accepted, any of the vehicles or accessories that constituted the subject of the transaction.
The plaintiff made an extended reply, which is now immaterial, a jury was waived, and the case was tried by the court. The testimony of witnesses and written evidence were introduced at the trial, and the court rendered a judgment for the defendant. Thereupon the plaintiff made a motion to set aside the findings of fact and the judgment, and for a new trial, and the court denied it. The plaintiff then filed an assignment of errors and sued out the writ of error.
When this case came on for argument in this court, the discovery was made that the bill of exceptions in the record, containing a recital of the evidence, etc., had not been verified by the certificate and signature of the trial judge. Thereupon the plaintiff moved that the abstract of the evidence be stricken from the record and that the case be submitted on the pleadings, the opinion of the court on the merits filed January 31, 1923, the judgment of February 8, 1923, the motion for a new trial, the assignment of errors, the opinion and order overruling the motion for a new trial, and the writ of error, and counsel for the plaintiff ask this court now to grant this motion and to reverse the judgment below on its merits.
But federal appellate courts in the trial of actions at law are courts for the correction of errors of law of the trial courts only. Questions of law which were not presented to the trial court, and sharply called to its attention by exceptions properly preserved in the record, may not be reviewed by a federal appellate court. Lesser Cotton Co. v. St. Louis, I.M. & So. Ry. Co. 114 F. 133, 140, 52 C.C.A. 95; Robinson & Co. v. Bilt, 187 U.S. 41, 50, 23 Sup.Ct. 16, 47 L.Ed. 65; Simmons Hardware Co. v. Southern Ry. Co. (C.C.A.) 279 F. 929, 934; Maynard v. Reynolds, 251 F. 784, 786, 164 C.C.A. 18; Federal Mining & Smelting Co. v. Hodge, 213 F. 605, 609, 130 C.C.A. 197.
The only exceptions to any rulings of the trial court remaining in this record are: (1) A general exception at the foot of the judgment in these words, 'To all of foregoing the plaintiff makes due exception;' and (2) an exception to the order of the trial court overruling the ...
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