Libby v. Crossley

• Decision Date: 10 December 1889
• Citation: 40 F. 564
• Parties: LIBBY et al. v. CROSSLEY et al.
• Court: U.S. District Court — District of Massachusetts

40 F. 564

LIBBY et al. v. CROSSLEY et al.

United States Circuit Court, D. Massachusetts.

December 10, 1889

Oliver C. Stevens and James McKeen, for plaintiffs.

Thomas Hillis and John Hillis, for defendant Crossley.

Bryant & Sweetser, for trustees.

CARPENTER J.

This is an action at law, in which the writ was served in trustee process on certain insurance companies, for the purpose of attaching a fund in their possession as the property of the defendant James E. Crossley. The claimants, Wilkinson Crossley and others, have intervened, and allege that the fund belongs to them by virtue of an assignment made to them by James E. Crossley before the attachment was made. The question thus arising between the plaintiffs and the claimants was heard by me without a jury in the October term 1886, to-wit, on the 3d and 4th of February, 1887, and was on or about the 23d of February submitted to me on written arguments, and held for advisement. In the May term, 1887 to-wit, on the 29th of July, I delivered my opinion, to the effect that the claimants were entitled to the fund. 31 F 647. Shortly afterwards the counsel for the plaintiffs presented to me a paper containing only a statement of the propositions of law which they had argued at the hearing, and in the margin of each proposition, for the convenience of the counsel, I noted whether it was, in my opinion, allowed or refused, in effect, by the determination which I had already made. They also filed in the clerk's office a paper wherein they stated, in general terms, that they excepted to the rulings which had been made in the case. Afterwards during the October term, 1887, a decree was settled and entered in accordance with the opinion. No further proceedings took place material to this inquiry until the 5th of December, 1889, on which day the plaintiffs' counsel presented to me, for my allowance, a bill of exceptions wherein were stated several of the propositions of law which were urged by them at the hearing, and which were not adopted by me in my decision, together with an abstract of such parts of the evidence to which it is conceived these propositions of law should properly apply. I think the bill of exceptions ought not to be signed. It is well settled that a bill of exceptions cannot be allowed unless it is presented to the judge not later than the term at which the judgment is rendered, 'without an express order of the court during the term,...