Marks v. Northern Pacific R. Co.
| Decision Date | 06 October 1896 |
| Docket Number | 277. |
| Citation | 76 F. 941 |
| Parties | MARKS et al. v. NORTHERN PAC. R. CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
F. H Graves, for plaintiffs in error.
W. O Chapman, for defendant in error.
Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.
The motion to dismiss the writ of error must be, and is, denied. The motion is based upon the ground that the writ was not sued out within the time limited by law, which is six months after the entry of the judgment sought to be reviewed. Act March 3, 1891, Sec. 11 (26 Stat. 826-829). The record shows that the case came on for trial before the court below on the 25th day of April, 1894. A jury having been duly impaneled and sworn to try the issues of fact, the attorney for the plaintiffs made an opening statement of the facts he expected to prove and relied upon for a recovery, upon the conclusion of which, on motion of the defendant, the court below instructed the jury to return a verdict for the defendant which was accordingly done on the same day. No judgment, however, on the verdict was entered until November 20, 1895, on which day, upon the motion of the plaintiffs in the case, a judgment upon the verdict rendered was signed by the judge, and entered of record. The writ of error was sued out and filed in the court below December 28, 1895,-- within six months after the entry of the judgment. The day after the rendition of the verdict (that is to say, on the 26th of April, 1894), the plaintiffs below presented to the trial judge a bill of exceptions, setting forth the facts upon which they relied as entitling them to a recovery, immediately after which the bill of exceptions recites:
'Thereupon the defendant moved the court, upon said opening statement and the pleadings, to instruct the jury to find a verdict for the defendant, on the ground that the facts, if proven as stated, would not entitle the plaintiffs to recover; and, after argument by counsel for the plaintiffs and defendant, the court granted said motion, and instructed the jury accordingly, to which action of the court the plaintiffs duly excepted, and their exception was allowed. No testimony was offered in the case, because of the action of the court as aforesaid, and the making of the opening statement as hereinbefore set out was all that occurred in the trial of the case prior to the instruction given as aforesaid. Counsel for the plaintiffs made no objection to the court ruling on the facts contained in his said opening statement, instead of waiting to have the same developed by the evidence, but consented thereto; and forasmuch as the facts aforesaid, and the decision of the court thereon, do not appear of record, the plaintiffs pray that this, their bill of exceptions, may be allowed, which is now done, and the said bill of exceptions signed and sealed accordingly. April 26, 1894.
This bill of exceptions was on the same day (April 26, 1894) filed with the clerk. And it is insisted on the part of the counsel for the defendant in error, as we understand them, that the use of the words in the bill of exceptions, 'and forasmuch as the facts aforesaid, and the decision of the court thereon,' signed by the judge, either imply that a judgment had been entered upon the verdict, or of themselves constitute such a judgment. We are unable to see anything in the suggestion. The use of the word 'decision' in the recitation in the bill of exceptions evidently refers to the action of the court in its ruling upon the motion of the defendant in the case to instruct the jury to find a verdict for the defendant on the ground that the facts, if proven as stated, would not entitle the plaintiffs to recover; and the sole purpose of the bill was to present the facts and the ruling of the trial court, with the plaintiffs' exceptions thereto, in order that they might, if they elected to do so, have the court's ruling reviewed upon proper proceedings. In no sense did the bill of exceptions, or any recitation in it, constitute the judgment which was to follow the verdict rendered by the jury. Indeed, under the statute of the state of Washington, by which, in the trial in question, the circuit court was, by virtue of section 914 of the Revised Statutes of the United States, controlled, no judgment could be entered upon the verdict until five days after it was returned. 2 Hill's Ann.St.Wash. § 435. The record shows that the only judgment ever entered upon the verdict was that signed by the judge, and filed November 20, 1895. This is the judgment,-- 'the entry of the judgment,'-- in the language of the supreme court in Polleys v. Improvement Co., 113 U.S. 83, 5 Sup.Ct. 369, and on that day the plaintiffs in error had a right to their writ, and on that day the six months began to run within which their right existed.
This brings us to the consideration of the merits of the case. The action grew out of a certain contract in writing entered into October 30, 1891, between the firm of Thomas Olsen & Co. and the defendant railroad company for the building of a certain line of railroad. The defendant company, desiring to shorten and improve the grade of certain parts of its road, established and marked out the line on the ground, and caused maps to be prepared showing the extent of the necessary cuts and fills, and their relation to each other. For the building of the road in accordance with the line so established, marked, and indicated, the firm of Olsen & Co. (to all of whose interest in the premises the plaintiffs in error succeeded prior to the commencement of this action) and the defendant entered into a written contract, which is set out in the amended complaint, describing the work to be done, and fixing the prices at which the contractors were to be paid for doing it. The contract contained these provisions, among others:
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