Maddox v. Thorn

• Citation: 60 F. 217
• Decision Date: 06 February 1894
• Docket Number: 132.
• Parties: MADDOX et al. v. THORN.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

60 F. 217

MADDOX et al. v. THORN.

No. 132.

United States Court of Appeals, Fifth Circuit.

February 6, 1894

West &amp McGown, for plaintiffs in error.

Myron R. Geer, for defendant in error.

Before PARDEE and McCORMICK, Circuit Judges, and LOCKE, District Judge.

McCORMICK Circuit Judge.

The plaintiffs in error make eight specifications of error in their assignment. The fifth, sixth, seventh, and eighth are substantially that the circuit court's findings of fact do not support the judgment as rendered. This assignment, to our view, is manifestly not well taken, and will not be further discussed. The fourth assignment is substantially that the judgment leaves it as uncertain where the lines of the survey are to be found on the ground as when issue was joined between the parties as to the disputed boundary of the Gonzales survey. We think that a careful examination of the calls of the judgment for the corners and lines of the land claimed by the defendant in error, and found for him and adjudged to him, shows that this fourth assignment is not well taken. The second and third assignments of error we cannot consider, because they are taken for the first time in this court. There is no bill of exception showing that the action of the circuit court complained of in these assignments was objected to or excepted to in the circuit court at the time when the trial judge could have obviated the objection if it had been duly made. Justice to the adversary party, and common respect for the trial court, alike require that a party aggrieved by the action of the trial court pending the progress of the case to judgment in that court shall, by proper motion and saving exception, call the attention of the court and of the adverse party to the ruling or action claimed to be erroneous. These assignments are instructive illustrations of the propriety of this rule, if the rule was not too well understood to call for support. In this case a jury was waived, and the issues of fact, as well as of law, were submitted to the judge. The real issue was the fixing of the disputed boundary or boundaries of an undisputed grant. The judgment filed and entered in the case September 15, 1892, recites:

'Defendants, Maddox Bros. & Anderson, [plaintiffs in error,] announcing ready for trial on June 5, 1891, and the court, after hearing the evidence and argument of counsel passed the cause, and held the same for further testimony and on the 1st day of August, 1892, appointed A. Q. Nash, of Sherman, Texas, to make a survey of the lands in controversy, and report his action to this court, and, said report of surveyor Nash being filed and the parties heard thereon, and the court, being fully advised as to all the facts in the cause, finds,' etc.

This announcement of the judge's finding was made in open court, with the parties or their attorneys all present. No objection was then made, or had previously been made, to the appointment of Nash, or to his report of his survey being received and considered by the judge; nor was any suggestion made impeaching the report in any particular, or leave asked for time or opportunity to disprove or impeach the same, nor was any suggestion, by motion or otherwise, made to the court that the judge had held the case so long, to consider, that the defendants wished to be further heard in offering additional proof, or again examining witnesses produced and examined 15 months before. It is now too late for them to complain that:

'The trial court erred in rendering judgment in the case at its September term, 1892, upon the evidence taken and heard herein at the June term of said court, in 1891, because two terms of said court had passed since the submission of said cause at its June term, 1891; and, the case not having been decided at that term, the court ought to have directed a retrial of same, as he had no power to carry the case over, from term to term, after its submission.'

Or that:

'The trial court erred in appointing the surveyor A. Q. Nash to make a survey of the land in controversy, and in considering said report as evidence in this cause, because his appointment was made after all the evidence had been introduced, the cause submitted at the June term, 1891, and the court adjourned for that term, and because these defendants had no opportunity to disprove or impeach the report of said A. Q. Nash.'

There remains to be considered the first assignment of error, which has been earnestly pressed on our attention in the oral argument, and in the printed brief submitted on behalf of plaintiffs in error. It is that:

'The trial court erred in allowing the plaintiff to amend his petition in this cause so as to show diverse citizenship of the parties, plaintiff and defendants, after the court had, from the bench, rendered his judgment herein, and after defendants had moved to arrest said judgment, because there was no allegation and no proof of diverse

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