Hoogendorn v. Daniel

• Decision Date: 03 February 1913
• Docket Number: 2,075.
• Citation: 202 F. 431
• Parties: HOOGENDORN v. DANIEL.
• Court: U.S. Court of Appeals — Ninth Circuit

202 F. 431

HOOGENDORN v. DANIEL.

No. 2,075.

United States Court of Appeals, Ninth Circuit.

February 3, 1913

F. E Fuller, of Nome, Alaska, and J. W. Albright, of Seattle Wash., for plaintiff in error.

W. T Dovell and Ira D. Orton, both of Seattle, Wash., for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

A motion is made to dismiss the writ of error, on the ground that the plaintiff in error has paid and satisfied the judgment. The motion must be denied. One who voluntarily pays a judgment is not precluded from taking an appeal therefrom. County of Dakota v. Glidden, 113 U.S. 222, 5 Sup.Ct 428, 28 L.Ed. 981; Erwin v. Lowry, 7 How. 172, 12 L.Ed. 655; O'Hara v. McConnell, 93 U.S. 150, 23 L.Ed. 840; Edwards v. Perkins, 7 Or. 149.

Error is assigned to the refusal to strike from the complaint those allegations which set up as elements of damage the payment of traveling expenses and loss of time and loss of opportunity to earn money by the defendant in error, incidental to his efforts to obtain title to his mining claims and his prosecution of his suit. Those allegations should have been struck from the complaint. But the defendant in error suffered no prejudice from the denial of his motion. No evidence whatever was offered to the jury to support the allegation as to the first item of damages. Nor did the court submit to the jury that item for their consideration. After the verdict was rendered, the court struck from the amount thereof $3,525, a sum more than sufficient to cover the amount of the other objectionable items. It should be presumed that, in so reducing the amount of the verdict, the court intended to and did exclude therefrom all items of damage which had been illegally submitted to the jury. Johnson v. Johnson, 104 Ky. 714, 47 S.W. 883. Unless it can be seen that prejudice has resulted from error of the trial court, prejudice will not be presumed.

But it is said that the court erred in instructing the jury concerning the loss sustained by defendant in error as the result of his purchase of a boiler. The court instructed the jury to take into consideration the fact, if they so found from the testimony, that the plaintiff purchased a boiler and transported it to the claims, and said:

'And the same method should be employed in computing the damages in this case, if you should find said boiler was purchased, and that the plaintiff was prevented from using the same, for the price of such boiler.'

This it is contended was equivalent to charging the jury that they might find for the plaintiff in the action damages measured by the purchase price of the boiler. It was evidently not so understood at the time, and no exception was taken to the instruction, and no assignment of error is based thereon. It is obvious that the language of the court is not correctly reported. Elsewhere the court clearly instructed the jury that the measure of damages as to the boiler and other machinery was the interest on the money invested therein during the time that the plaintiff was kept out of possession by reason of the acts of the defendants.

The court instructed the jury as follows:

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