Loring v. Frue
| Decision Date | 01 October 1881 |
| Citation | 26 L.Ed. 713,104 U.S. 223 |
| Parties | LORING v. FRUE |
| Court | U.S. Supreme Court |
ERROR to the Circuit Court of the United States for the Eastern District of Michigan.
The facts are stated in the opinion of the court.
Mr. C. I. Walker and Mr. George F. Edmunds for the plaintiff in error.
Mr. Samuel T. Douglass and Mr. John H. Bissell for the defendant in error.
The declaration in this case contains only the common counts. The plea was the general issue, which a jury was sworn to try. After evidence had been offered by Frue, the plaintiff below, he elected to take a nonsuit, whereupon the following order was made, June 11, 1874: 'It is therefore ordered judgment of nonsuit, and that the defendant recover of the said plaintiff his costs of this suit to be taxed, and leave is granted to said plaintiff to move to set aside this judgment.'
Oct. 31, 1876, the court made an order in the following terms: 'The motion to set aside the nonsuit heretofore entered in this cause again coming on to be heard, the same having been heard in part on the thirtieth day of October, instant, the arguments of counsel for the respective parties are concluded and the matter submitted, and the same having been duly considered by the court, it is now ordered that said nonsuit be, and the same is hereby, set aside, with leave to put the case on the docket for trial at the next ensuing November term of this court.'
On the 26th of December thereafter there appears an entry of an order overruling, after argument of counsel on both sides, a motion to set aside the order last cited. The case then went to trial, and the defendant again sought, by way of a prayer for instructions, to raise the question of the validity of the order setting aside the nonsuit.
The same point is much urged here by Loring, the defendant below, against whom judgment was given, and he assigns for error the action of the court in that respect.
It is quite obvious that no such question could be submitted to the jury, and that a prayer for instructions thereon was properly overruled.
Whether the court had the power to set aside this nonsuit more than two years after the judgment had been rendered is a very interesting question, the determination of which would depend somewhat on facts that are not in this record. Although counsel was present during the entire proceedings, no bill of exceptions was taken, so as to bring before us the grounds of either motion or the facts on which it was supported.
When a case is heard in an appellate court on a writ of error, it is a principle equally well settled in law and necessary in the administration of justice, that only such errors as are plainly made to appear can be grounds of reversal, and that every presumption consistent with the record is to be made in favor of the action of the inferior court.
It is not inconsistent with anything in this record that at the term when the nonsuit was granted the motion to set it aside was made, and then continued by regular orders from term to term until it was decided. In such case there can be no question of the power of the court to make the order. So it may have been stipulated that, until the chancery suit between the same parties which is found in the record should be decided, the action was to remain in court, and then come up on the motion to set aside the nonsuit. This also would have given the court the right to set it aside.
As the plaintiff in error, although present by counsel when the objectionable order was made, and the subsequent motion to set it aside was heard, took no bill of exceptions to negative the presumptions we have mentioned, as well as others which might be suggested, we must presume that the action of the court was in accordance with law. The assignments of error based on the order setting aside the nonsuit are not well taken.
The record contains a very full bill of exceptions professing to embody all the evidence submitted on the trial. The errors assigned relate to the instructions of the court, and to its refusal to grant the prayer of the plaintiff in error for instructions.
The evidence consisted wholly of that of the plaintiff and his agent, Palmer, and some letters and correspondence which they introduced.
It appears that the transactions on which the claim is founded originated in the purchase of mineral lands in Michigan, the organization of two joint-stock companies as owners of them, and in speculations in the...
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Nolan v. United States
...by appellant. Mercantile Trust Co. v. Hensey, 205 U. S. 298, 306, 27 S. Ct. 535, 51 L. Ed. 811, 10 Ann. Cas. 572; Loring v. Frue, 104 U. S. 223, 224, 26 L. Ed. 713; Kearney v. Denn, 15 Wall. 51, 56, 21 L. Ed. 41; Miller v. United States, 11 Wall. 268, 299, 300, 20 L. Ed. 135; Rector v. Unit......
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...as to conform with and uphold the judgment. Cf. Larkin v. Upton, 1892, 144 U.S. 19, 21, 12 S.Ct. 614, 36 L.Ed. 330; Loring v. Frue, 1881, 104 U.S. 223, 224, 26 L.Ed. 713. This the Court has not done. The Court's construction is all the more surprising because it places the judgments below i......
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