Mound Coal Co. v. Jeffrey Mfg. Co.
| Decision Date | 22 December 1916 |
| Docket Number | 1369. |
| Citation | 240 F. 129 |
| Parties | MOUND COAL CO. v. JEFFREY MFG. CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Hubbard & Hubbard, of Wheeling, W. Va., for plaintiff in error.
W Wilson Carlile, of Columbus, Ohio (J. Coleman Simpson, of Moundsville, W. Va., and J. B. Sommerville, of Wheeling, W Va., on the brief), for defendant in error.
Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.
This case was decided at the May term, 1916. A petition for rehearing was presented June 17, 1916, in which it appears that plaintiff in error grouped the evidence in narrative form, but opposing counsel objected to the same; that the matter was then presented to the trial judge, who refused the request of plaintiff in error to incorporate the same as a part of the record. This question was presented to us in the first instance in the nature of a motion that the cause be remanded to the court below, with instructions to transmit to this court the proposed statement. The motion was not accompanied by a copy of the proposed statement of evidence so that we might determine as to whether it was material to the issues involved in this controversy. The statement in question obviously contained only the oral testimony offered in the court below, for the reason that there was a stipulation as to most of the essential facts incorporated in the statement of facts by the court below, and an examination of the same shows that the rule invoked by plaintiff in error could have no application to a stipulation of this character, inasmuch as it is already in the briefest possible form.
Counsel for plaintiff in error did not appear at the time the case was heard in this court. Therefore we have no means of knowing what the narrative statement contained. As we have stated, plaintiff in error offered oral testimony in the court below, and if it is now the purpose of counsel to have an epitomized statement of the same transmitted to this court, the rule of court which requires such evidence to be brought here by a bill of exceptions would preclude us from considering this particular evidence. It also appeared when this case was heard before that a complete transcript of the evidence was incorporated in the record. Under these circumstances we were of opinion that the plaintiff in error was not prejudiced by the ruling of the court below, and we still entertain the same views.
The petition for...
To continue reading
Request your trial
-
United States v. King & Howe
...urges that the stipulated facts may be considered although not incorporated in a bill of exceptions. See Mound Coal Co. v. Jeffrey Mfg. Co., 240 F. 129, 130 (C. C. A. 4). But it is unnecessary to decide whether the stipulated facts are before us. If the complaint is defective, the stipulate......
- American Warehouse & Trading Co. v. Davison Lumber Co.
-
Mound Coal Co. v. Jeffrey Mfg. Co.
...A petition for rehearing was filed on the 21st day of June, 1916, and a rehearing was granted as to the fourth assignment of error (240 F. 129, . . . C.C.A. . . .); assignment in question being in the following language: 'The court erred in making its last-mentioned order sustaining the pla......