Ogden City v. Weaver

• Decision Date: 20 April 1901
• Docket Number: 1,492,1,493.
• Citation: 108 F. 564
• Parties: OGDEN CITY v. WEAVER (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

108 F. 564

OGDEN CITY v. WEAVER (two cases).

Nos. 1,492, 1,493.

United States Court of Appeals, Eighth Circuit.

April 20, 1901

This action was brought by William Adamson and Stanley L. Conklin as receivers of the Bear River Irrigation & Ogden Waterworks Company, hereafter termed the 'Irrigation Company,' against Ogden City, the plaintiff in error, to recover the amount alleged to be due to the receivers from the city for water that had been supplied to it by the irrigation company and by the receivers subsequent to their appointment. William C. Weaver, the defendant in error, was substituted as plaintiff after the suit was instituted; the original receivers first above named having been removed, and said Weaver having been appointed as sole receiver in their place and stead. The complaint contained four causes of action, but two of these, namely, the third and fourth, were dismissed by the plaintiff prior to the trial below. The parties stipulated that the issues arising on the first and third causes of action should be tried before the court without the intervention of a jury, and a judgment entered according to the opinion of the court, ' and that, if the opinion of the court is that the plaintiffs are not entitled to recover upon the first and third causes of action, then a trial shall be had to a jury, unless the parties agree to waive a jury upon the issues joined on the second and fourth causes of action. ' On the trial of the first cause of action the lower court rendered a judgment in favor of the plaintiff below in the sum of $11,734.06. Subsequently, acting upon the aforesaid stipulation, there was a trial on the second cause of action before a jury, which resulted in a verdict and judgment in favor of the plaintiff below for the sum of $10,146.42. Two writs of error were sued out by the defendant below, which were addressed, respectively, to the two judgments last mentioned. By the first count in the complaint the receiver sought to recover the value of water which had been supplied to the city by the irrigation company prior to the appointment of receivers, between January 1, 1897, and May 17, 1898. By the second count he sought to recover the value of water that had been furnished by the receivers after they assumed charge of the waterworks; that is to say, from May 17, 1898, until July 29, 1899, when the action was commenced. Concerning the pleadings in the case, it will suffice for present purposes to say that the receiver claimed that the city was liable to pay the sums claimed both in the first and second causes o? action under and by virtue of the terms of a certain contract which was entered into by the city with one John R. Bothwell on August 6, 1889, which contract had been assigned by Bothwell on September 25, 1889 to the Bear Lake & River Waterworks & Irrigation Company, all of whose rights under said contract were acquired on or about September 1, 1894, at a foreclosure sale, by the irrigation company first above named, to wit, the Bear River Irrigation & Ogden Waterworks Company. The complaint showed that water had been supplied to the city by the irrigation company under the terms of said contract from the time it acquired the same, in September, 1894, until May 17, 1898, when receivers were appointed, and that thereafter water had been supplied by the receivers, and that the city had paid for the water so furnished at the contract rate until January 1, 1897, except a small amount ($90) which was due for the use of three hydrants from July 1, 1896, to January 1, 1897. The principal defense that was interposed by the city in its answer, and on which it seems to have relied exclusively as a justification for its refusal to pay for water that had actually been received, was that the contract which was made by the city with Bothwell on August 6, 1889, and under which water had been continuously supplied down to the institution of the suit, was in excess of the city's powers, and was for that reason invalid.

C. S. Varian (Herbert R. MacMillan, H. H. Henderson, and F. S. Richards, on the brief), for plaintiff in error.

Andrew Howat (Lindsay R. Rogers, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge, after stating the case as above.

As the issues arising on the first cause of action were tried before the court without the intervention of a jury, and as the finding was general, the only question open for review is whether error was committed in the rejection or admission of evidence, or in rulings upon any motions made in the progress of the trial which are reviewable on appeal, to which an exception was duly saved. This court cannot review the decision of the trial judge upon questions of law which seem to have been considered by him, as appears by an opinion which has been incorporated into the transcript, unless the questions so considered are raised and presented by exceptions to the admission or exclusion of evidence which are duly preserved by the bill of exceptions. In the present case the opinion of the learned judge of the trial court is not contained in the bill of exceptions, and for that reason it forms no part of the record proper. It was inserted in the transcript, according to the usual practice in that behalf, for the convenience of counsel and for the information of this court; but assignments of error which are addressed to the views that were expressed by the learned judge of the trial court in deciding the case, even if his opinion had been incorporated into the bill of exceptions, cannot be noticed, unless a proper foundation was laid in the bill of exceptions for obtaining a review, based upon rulings which were made during the progress of the trial. It is to be further observed that errors which are specified in the assignment of errors cannot be noticed on appeal unless the action complained of is disclosed by the bill of exceptions, nor unless it appears by referring thereto that an exception to the action complained of was properly taken during the progress of the trial. These rules of procedure are well established by numerous adjudications, a few of which only need be cited: Searcy Co. v. Thompson, 27 U.S.App. 715, 13 C.C.A. 349, 66 F. 92; Adkins v. W. & J. Sloane, 19 U.S.App. 573, 8 C.C.A. 656, 60 F. 344; Trust Co. v. Wood, 19 U.S.App. 567, 8 C.C.A. 658, 60 F. 346; Insurance Co. v. Folsom, 18 Wall. 237, 253, 21 L.Ed. 827; Stanley v. Supervisors, 121 U.S. 535, 547, 7 Sup.Ct. 1234, 30 L.Ed. 1000; Lehnen v. Dickson, 148 U.S. 71, 73, 13 Sup.Ct. 481, 37 L.Ed.

373; Consolidated Coal Co. of St. Louis v. Polar Wave Ice Co., 106 F. 798. The application of the foregoing rules to the case in hand leaves but a few questions which are open for consideration and review.

The first point insisted upon by counsel for the plaintiff in error is that the trial court erred in holding that a decree which appears to have been rendered by the district court for the Third judicial district of the state of Utah in a case which was brought by Ogden City against the Bear Lake & River Waterworks & Irrigation Company and the Bear River Irrigation & Ogden Waterworks Company et al. was not a final decree determinative of the rights of the plaintiff and the defendant in the present action. With reference to this contention it is to be observed that the record and decree in the case pending in the state court seem to have been offered in evidence on the trial of the case at bar by the defendant below; that is to say, by Ogden City. They were objected to at the time by the receiver, and the bill of exceptions recites that they were admitted 'subject to objection,' the trial court undertaking to rule on their admissibility afterwards. We are not advised by the bill of exceptions whether they were eventually admitted or rejected. Neither are we informed,...