International Lumber Co. v. United States

• Decision Date: 09 March 1916
• Docket Number: 4332.
• Citation: 231 F. 873
• Parties: INTERNATIONAL LUMBER CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

231 F. 873

INTERNATIONAL LUMBER CO. v. UNITED STATES.

No. 4332.

United States Court of Appeals, Eighth Circuit.

March 9, 1916

Rehearing Denied May 12, 1916.

This was an action by the United States, the defendant in error hereinafter called the plaintiff, against the plaintiff in error, referred to herein as the defendant, to recover the value of timber purchased by the plaintiff in error from one Arthur M. White, which it was charged had been wrongfully unlawfully, and willfully cut and removed by White from the public lands of the United States, and by the defendant converted to its own use. The defendant in its answer pleaded a general denial, and as a special defense that the said White had entered upon and occupied the lands from which it was alleged the timber was cut for the purpose of acquiring them as a homestead, in conformity with the laws of the United States; that White went upon the premises, built a dwelling house thereon, clearing the land and cultivating the same; also that the logs described in the complaint as having been cut by him were sold to the Keewatin Lumber Company, and not the defendant, who purchased them in good faith believing that said White had a good and lawful right to cut and remove the said timber, and that he did so for the lawful purpose of clearing and cultivating the land as required by the homestead laws of the United States; that all the acts of White, as well as those of the purchaser of the logs, were done and performed in good faith, believing that the said White had a lawful right and authority to cut and remove the logs, and that the purchaser had the right and authority to purchase the same. To this answer a reply was filed, denying the allegations in the answer. A trial to a jury was had, and upon a verdict in favor of the plaintiff, judgment was entered against the defendant, who now prosecutes this writ of error.

Harris Richardson, of St. Paul, Minn. (Walter Richardson, of St. Paul, Minn., on the brief), for plaintiff in error.

Alfred Jaques, U.S. Atty., of Duluth, Minn.

Before ADAMS and CARLAND, Circuit Judges, and TRIEBER, District Judge.

TRIEBER District Judge (after stating the facts as above).

While there are a number of assignments of error, the record shows that there were only three exceptions taken by the defendant, during the progress of the trial: (1) At the close of the testimony on behalf of the plaintiff, the defendant moved for a directed verdict in its favor, which being refused by the court, an exception was saved. (2) Upon the close of all the testimony in the case the defendant again moved the court for a directed verdict in its favor, which was refused by the court, and an exception saved. (3) To that part of the charge which instructed the jury that the cutting of the timber by White was a willful trespass.

The rule is well settled that an appellate court, on a writ of error, can only consider such alleged errors as have been properly excepted to at the trial. Chicago, Burlington & Quincy Ry. Co. v. Frye-Bruhn Co., 184 F. 15, 106 C.C.A. 217; Mexico International Land Co. v. Larkin, 195 F. 495, 115 C.C.A. 405; Griggs v. Nadeau, 221 F. 381, 137 C.C.A. 189. As the defendant introduced evidence after the court had overruled its motion for a directed verdict at the close of the plaintiff's testimony, this exception was waived, and cannot be considered by this court. Bell v. Union Pacific Ry. Co., 194 F. 366, 114 C.C.A. 326.

The other two exceptions may be considered together, as the counsel for the government announced in open court that, unless the trespass by White was willful, the plaintiff was not entitled to recover. It is only necessary, therefore, to determine whether the evidence was of such a nature as to justify the court in peremptorily charging the jury that the trespass by White was willful. While the evidence is quite voluminous, the facts are undisputed, showing that the trespass was willful.

From the evidence it appears that...