McCormick v. National City Bank of Waco, 1,446.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation142 F. 132
Docket Number1,446.
PartiesMcCORMICK v. NATIONAL CITY BANK OF WACO.
Decision Date16 January 1906

142 F. 132

McCORMICK
v.
NATIONAL CITY BANK OF WACO.

No. 1,446.

United States Court of Appeals, Fifth Circuit.

January 16, 1906


J. E. Boynton and Chas. A. Boynton, for plaintiff in error.

J. B. Scarborough, J. N. Gallagher, H. N. Atkins, and A. C. Prendergast, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM.

After evidence taken in this case each party requested the court to instruct the jury to return a verdict in his favor, thereby both affirming that there was no disputed question of fact which could operate to deflect or control the question of law, and necessarily requesting that the court find the facts. The parties are therefore concluded by the findings made by the court upon which the resulting construction of law was given, and this court in reviewing the action of the Circuit Court is limited to the consideration of the correctness of the finding on the law, and must affirm if there be any evidence in support thereof. Beuttel v. Magone, 157 U.S. 154, 15 Sup.Ct. 566, 39 L.Ed. 654.

We find ample evidence in the record to support the conclusion of the court, and the judgment of the Circuit Court is therefore affirmed.

SHELBY, Circuit Judge (concurring). I concur in the judgment of affirmance, because I find no reversible error in the record; but I am not of opinion that the plaintiff in error lost any right in this court by merely requesting the trial court to direct a verdict in his favor.

The doctrine announced in Beuttell v. Magone, 157 U.S. 154, 15 Sup.Ct. 566, 39 L.Ed. 654, should not be extended to cases in which there are disputed questions of fact, nor to cases in which the parties [142 F. 133.] ask other instructions in the event the peremptory instructions asked by them, respectively, are not given. In Beuttell v. Magone, supra, neither party asked to submit to the jury any disputed question of fact, and the court said: 'There was obviously no disputed question of fact. ' In a case where there is such conflict in the evidence as to require it to be submitted to the jury, there is no reason why, and the Supreme Court does not hold that, a party may not ask for a peremptory instruction in his favor without depriving himself, if the court decides he is not entitled to it, of the right to have the jury pass on the controverted issue of fact in the case. Although both parties may ask the court to direct the verdict, if there is conflict in the evidence or conflicting...

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15 practice notes
  • WA Hover & Co. v. Denver & RGWR Co., No. 7171.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 21, 1927
    ...T. & S. F. Ry. Co. (C. C. A.) 147 F. 457, and the concurring opinion of Judge Shelby in McCormick v. National City Bank of Waco (C. C. A.) 142 F. 132, 6 Ann. Cas. 544; Minahan v. Grand Trunk Western Railway Co., supra; Manska v. San Benito Land Co., supra, page It is apparent, therefore, th......
  • Parker v. Plympton, 11900.
    • United States
    • Colorado Supreme Court of Colorado
    • December 24, 1928
    ...lucidly stated in the concurring opinion of Shelby, Circuit Judge, in McCormack [McCormick] v. National City Bank of Waco, 73 C.C.A. 350, 142 F. 132, where, referring to Beuttell Magone, he said (page 351 [142 F. 133]): "A party may believe that a certain fact which is proved without confli......
  • Meyer & Chapman State Bank v. First Nat. Bank, 5923.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 15, 1923
    ...L.R.A. 569; Insurance Co. of North America v. Wisconsin Cent. Ry. Co., 134 F. 794, 67 C.C.A. 300; McCormick v. National City Bank of Waco, 142 F. 132, 73 C.C.A. 350, 6 Ann.Cas. 544. A party may, however, request a peremptory instruction and also other instructions, and, upon refusal of the ......
  • Christensen v. Utah Rapid Transit Co, 5292
    • United States
    • Supreme Court of Utah
    • December 4, 1933
    ...T. & S. F. Ry. Co. (C. C. A.) 147 F. 457, and the concurring opinion of Judge Shelby in McCormick v. National City Bank of Waco (C. C. A.) 142 F. 132, 6 Ann. Cas. 544; Minahan v. Grand Trunk Western Railway Co., supra; Manska v. San Benito Land Co., supra [18 A. L. R. ] page 1444. It is app......
  • Request a trial to view additional results
15 cases
  • WA Hover & Co. v. Denver & RGWR Co., No. 7171.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 21, 1927
    ...T. & S. F. Ry. Co. (C. C. A.) 147 F. 457, and the concurring opinion of Judge Shelby in McCormick v. National City Bank of Waco (C. C. A.) 142 F. 132, 6 Ann. Cas. 544; Minahan v. Grand Trunk Western Railway Co., supra; Manska v. San Benito Land Co., supra, page It is apparent, therefore, th......
  • Parker v. Plympton, 11900.
    • United States
    • Colorado Supreme Court of Colorado
    • December 24, 1928
    ...lucidly stated in the concurring opinion of Shelby, Circuit Judge, in McCormack [McCormick] v. National City Bank of Waco, 73 C.C.A. 350, 142 F. 132, where, referring to Beuttell Magone, he said (page 351 [142 F. 133]): "A party may believe that a certain fact which is proved without confli......
  • Meyer & Chapman State Bank v. First Nat. Bank, 5923.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 15, 1923
    ...L.R.A. 569; Insurance Co. of North America v. Wisconsin Cent. Ry. Co., 134 F. 794, 67 C.C.A. 300; McCormick v. National City Bank of Waco, 142 F. 132, 73 C.C.A. 350, 6 Ann.Cas. 544. A party may, however, request a peremptory instruction and also other instructions, and, upon refusal of the ......
  • Christensen v. Utah Rapid Transit Co, 5292
    • United States
    • Supreme Court of Utah
    • December 4, 1933
    ...T. & S. F. Ry. Co. (C. C. A.) 147 F. 457, and the concurring opinion of Judge Shelby in McCormick v. National City Bank of Waco (C. C. A.) 142 F. 132, 6 Ann. Cas. 544; Minahan v. Grand Trunk Western Railway Co., supra; Manska v. San Benito Land Co., supra [18 A. L. R. ] page 1444. It is app......
  • Request a trial to view additional results

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