Keener v. Baker, 1,120.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
PartiesKEENER et al. v. BAKER.
Decision Date03 April 1899
Docket Number1,120.

93 F. 377

KEENER et al.
v.
BAKER.

No. 1,120.

United States Court of Appeals, Eighth Circuit.

April 3, 1899


[93 F. 378]

John K. Vanatta, for plaintiffs in error.

Victor A. Elliott, Willis V. Elliott, and Thomas Mitchell, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL, Circuit Judge.

This action was brought by Cyrus A. Baker, the plaintiff below, against George L. Keener, C. G. Kingsbury, and M. S. Herring, the defendants below, to recover the purchase money paid by the plaintiff to the defendants on account of the purchase of the Catherine lode mining claim, situated in Cripple Creek, Colo., upon the ground that the purchase was induced and the money obtained from the plaintiff by the false and fraudulent representations and devices of the defendants. The Nugget Mining Company owned the alleged lode mining claim, and the transfer of the title to the interest in the mine which the plaintiff purchased was to be effected by transferring to him 345,111 shares of the stock of the corporation. The plaintiff paid the defendants at the date of the purchase $10,000, and afterwards the further sum of $416.66. The answer denied the fraud. The case was tried before a jury, who found a verdict for the whole sum claimed by the plaintiff, upon which judgment was rendered, and the defendants sued out this writ of error. There was no demurrer to the complaint, and no exceptions were taken to the charge of the court.

At the close of the plaintiff's testimony the defendants moved 'for a judgment as in case of nonsuit,' upon the ground that the evidence was not sufficient to support the plaintiff's action; and the denial of this motion by the court is assigned for error. After this motion was overruled, the defendants introduced their testimony, and this was a waiver of any exception to the ruling of the court denying the nonsuit. Jefferson v. Burhans, 58 U.S.App. 597, 29 C.C.A. 487, and 85 F. 924.

There was a motion for a new trial, which was overruled, and that ruling is assigned for error; but it is well settled in the courts of the United States that the ruling on a motion for a new trial is not the subject of exception. Condran's Adm'x v. Railway Co., 14 C.C.A. 506, 32 U.S.App. 182, and 67 F. 522.

The remaining assignment of error is that 'the complainant did not, nor doth, state facts sufficient to constitute any cause of action. ' The ground upon which this contention is rested is that...

To continue reading

Request your trial
9 practice notes
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • 24 Marzo 1913
    ...Sigafus v. Porter, 179 U.S. 116; Denver &c. R. Co. v. Robinson, (Colo.) 40 P. 840; Ry. Co. v. Jones, (Md.) 50 A. 423; Keener v. Baker, 93 F. 377; Ratliff v. Ratliff, 131 N.C. 425, 63 L. R. A. 963; United Rys. &c. v. State (Md.), 49 A. 923; Lowe v. Ry. Co. (Cal.), 98 P. 675; Burnham v. R. Co......
  • Woods-Faulkner & Co. v. Michelson, No. 9553.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 3 Abril 1933
    ...Glaspie v. Keator (C. C. A. 8) 56 F. 203; United Kansas Portland Cement Co. v. Harvey (C. C. A. 8) 216 F. 316; Keener v. Baker (C. C. A. 8) 93 F. 377. There is evidence in the record that the shares of stock dropped from $12.50 per share to less than $2 per share, and the trial court found ......
  • Duluth St. Ry. Co. v. Speaks, 3,811.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 22 Marzo 1913
    ...Glaspie v. Keator et al., 56 F. 203, 5 C.C.A. 474; City of Plankinton v. Gray et al., 63 F. 415, 11 C.C.A. 268; Keener et al. v. Baker, 93 F. 377, 35 C.C.A. 350; Mine & Smelter Supply Co. v. Parke & Lacy Co., 107 F. 881, 47 C.C.A. 34. It is, indeed, the general rule. Roberts v. Graham, 6 Wa......
  • Michigan Home Colony Co. v. Tabor, 2,174.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 17 Noviembre 1905
    ...were proved, and in all formal and technical matters the complaint will be treated as amended to conform to the facts. Keener v. Baker, 93 F. 377, 35 C.C.A. 350; Haley v. Kilpatrick, 104 F. 647, 44 C.C.A. 102; Mine and Smelter Supply Co. v. Parke & Lacy Co., 107 F. 881, 47 C.C.A. 34. Whethe......
  • Request a trial to view additional results
9 cases
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • 24 Marzo 1913
    ...Sigafus v. Porter, 179 U.S. 116; Denver &c. R. Co. v. Robinson, (Colo.) 40 P. 840; Ry. Co. v. Jones, (Md.) 50 A. 423; Keener v. Baker, 93 F. 377; Ratliff v. Ratliff, 131 N.C. 425, 63 L. R. A. 963; United Rys. &c. v. State (Md.), 49 A. 923; Lowe v. Ry. Co. (Cal.), 98 P. 675; Burnham v. R. Co......
  • Woods-Faulkner & Co. v. Michelson, No. 9553.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 3 Abril 1933
    ...Glaspie v. Keator (C. C. A. 8) 56 F. 203; United Kansas Portland Cement Co. v. Harvey (C. C. A. 8) 216 F. 316; Keener v. Baker (C. C. A. 8) 93 F. 377. There is evidence in the record that the shares of stock dropped from $12.50 per share to less than $2 per share, and the trial court found ......
  • Duluth St. Ry. Co. v. Speaks, 3,811.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 22 Marzo 1913
    ...Glaspie v. Keator et al., 56 F. 203, 5 C.C.A. 474; City of Plankinton v. Gray et al., 63 F. 415, 11 C.C.A. 268; Keener et al. v. Baker, 93 F. 377, 35 C.C.A. 350; Mine & Smelter Supply Co. v. Parke & Lacy Co., 107 F. 881, 47 C.C.A. 34. It is, indeed, the general rule. Roberts v. Graham, 6 Wa......
  • Michigan Home Colony Co. v. Tabor, 2,174.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 17 Noviembre 1905
    ...were proved, and in all formal and technical matters the complaint will be treated as amended to conform to the facts. Keener v. Baker, 93 F. 377, 35 C.C.A. 350; Haley v. Kilpatrick, 104 F. 647, 44 C.C.A. 102; Mine and Smelter Supply Co. v. Parke & Lacy Co., 107 F. 881, 47 C.C.A. 34. Whethe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT