Reader v. Haggin
| Decision Date | 10 March 1908 |
| Docket Number | 176. |
| Citation | 160 F. 909 |
| Parties | READER v. HAGGIN. |
| Court | U.S. Court of Appeals — Second Circuit |
Dittenhoefer Gerber & James (A. J. Dittenhoefer and Dudley F. Phelps, Jr. of counsel), for plaintiff in error.
Alexander and Green (Francis L. Wellman and Sumner B. Stiles, of counsel), for defendant in error.
Before LACOMBE, COXE, and NOYES, Circuit Judges.
The action was brought to recover $250,000 as commissions, under an alleged oral agreement by which the defendant promised to pay the plaintiff 10 per cent. on the price of certain mines in Peru which were purchased by the defendant through the plaintiff as defendant's broker.
The bill of exceptions shows that plaintiff was the only witness. Upon his cross-examination numerous letters, cablegrams, and other documents signed by the plaintiff were produced by the defendant, and the plaintiff was interrogated regarding them. It is unnecessary to characterize these papers further than to say that many of them are quite inconsistent with the theory upon which the action was prosecuted. When the court adjourned on Wednesday, December 19, 1906, the plaintiff was still on the stand with his cross-examination unconcluded. On the assembling of the court on Thursday morning the following proceedings took place.
The plaintiff did not ask to submit any question to the jury. This, then, is all that took place on the trial, the plaintiff was examined and partly cross-examined. He then rested his case. The defendant also rested and asked for the direction of a verdict, which was granted. To this action of the court no exception was asked for and none appears in the record. Exceptions were noted to rulings of the court admitting several of the letters heretofore referred to, but they are so manifestly untenable that it is unnecessary to discuss them in detail. The cause was tried at the October term, and no bill of exceptions was signed, filed, or served during that term. The time in which to file a bill of exceptions was not extended by order or otherwise, and the bill was not presented for signature until August 28, 1907 five months after the expiration of the October term, when it was signed nunc pro tunc as of March 30, 1907. This court has repeatedly held that after the expiration of the term at which the cause was tried, unless the court reserves control over the case by rule or order, it is too late to allow a bill of exceptions. If, however, we assume the bill of exceptions to be properly before us, it does not aid the plaintiff for the reason that it is absolutely barren of any exception which would justify a reversal of the judgment. The grievance of which the plaintiff particularly complains is...
To continue reading
Request your trial
-
Miller v. Maryland Casualty Co.
...U. S., supra. New York & T. S. S. Co. v. Anderson (C. C. A.) 50 F. 462; Denison v. Shawmut Mining Co. (C. C. A.) 159 F. 102; Reader v. Haggin (C. C. A.) 160 F. 909; Worden v. Kenny (C. C. A.) 239 F. 131; Ford Motor Co. v. Hotel Woodward Co. (C. C. A.) 271 F. 625; Harrison v. U. S. (C. C. A.......
-
Blisse v. United States
...to 6 months after entry of judgment, within which the defeated party was entitled to sue out a writ of error. In Reader v. Haggin, 160 F. 909, 88 C.C.A. 91 (1908), this court held that, after the expiration of the term which the cause was tried, the court could not allow a bill of exception......
-
Farm Mortgage & Loan Co. v. Willett
... ... allow a bill of exceptions after the term of court has ... expired cannot be properly entered. Reader v ... Haggin, 160 F. 909, 88 C.C.A. 91. Nor, indeed, is it ... within the power of the court to create or re-create a record ... by a nunc pro ... ...
-
Knowlton v. Seneca Engineering Co.
...failure to file a bill of exceptions or consider newly discovered evidence be continued or extended by a nunc pro tunc order. Reader v. Haggin (C. C. A.) 160 F. 909; and see Exporters of Mfg. Products, Inc., v. Butterworth-Judson Co., 258 U. S. 365, 42 S. Ct. 331, 66 L. Ed. 663, and Sanford......