Southern Pac. Co. v. Johnson

• Decision Date: 05 August 1895
• Docket Number: 150.
• Parties: SOUTHERN PAC. CO. v. JOHNSON.
• Court: U.S. Court of Appeals — Ninth Circuit

69 F. 559

SOUTHERN PAC. CO. v. JOHNSON.

No. 150.

United States Court of Appeals, Ninth Circuit.

August 5, 1895

W. F Herrin, E. S. Pillsbury, and G. W. Baker, for plaintiff in error.

Robert M. Clarke and C. A. Jones, for defendant in error.

Before McKENNA and GILBERT, Circuit Judges, and MORROW, District judge.

MORROW District Judge.

This case is now before the appellate court upon a rehearing granted February 28, 1895. The action was instituted in the circuit court for the district of Nevada by Eliza Ann Johnson, administratrix of the estate of Horace Johnson deceased, against the Southern Pacific Company, to recover damages for the death of plaintiff's intestate, alleged to have been caused by defendant's negligence. Plaintiff (defendant in error here) recovered a verdict of $25,000, but consented to a reduction to $15,000, in lieu of a new trial. The defendant (plaintiff in error here) sued out this writ of error, and arguments were had, and the cause submitted for decision on April 10, 1894. The opinion upon that hearing was rendered November 5, 1894. The determination which the court then reached was that the verdict should be set aside, and the case remanded for a new trial, on the ground that the trial court had committed an error in refusing to grant the motion of plaintiff in error to instruct the jury to find a verdict in its favor for the reason that the evidence showed conclusively that the deceased had been guilty of contributory negligence. 12 C.C.A. 479, 64 F. 951. While the insufficiency of the evidence tending to show negligence on the part of the company was considered, the decision was based upon the question of contributory negligence. After a full and careful reconsideration of the case as presented upon the rehearing, we are still of the opinion that our ultimate conclusion, to grant a new trial was correct; but we place our reasons for so holding, not upon the question of contributory negligence on the part of the deceased, but upon the insufficiency of the evidence, as contained in the bill of exceptions, to justify the court in submitting the case to the jury at all.

Before entering into a consideration of this question, there is a preliminary objection to be disposed of. The defendant in error insisted at the former hearing that there was no proper bill of exceptions before this court. This was considered, but not noticed in the opinion, the objection being deemed not well founded. Inasmuch as this point has again been earnestly pressed upon the attention of the court, both in the petition for a rehearing and on the argument, we will briefly state the reasons which impel us to consider this objection to the bill of exceptions untenable. It is claimed that the bill of exceptions, and the errors assigned therein, should be disregarded, and the judgment affirmed, for the reason that the bill of exceptions was not served, and was not presented to the judge, or allowed, within the time provided by the rules of court, and because the exceptions were waived, and the bill of exceptions abandoned, by failure to present the same within the time required by the rules of court. Rules 23 and 25 of the circuit court for the district of Nevada are relied on to sustain this contention. Rule 23 provides that:

'All exceptions to the charge of the court to the jury shall be specified in writing immediately after the conclusion of the charge and handed to the court before the jury leave the box. The bill of exceptions must be prepared in form and presented to the judge within ten days after verdict, and in default thereof the exceptions will be deemed waived.'

Rule 25 provides that:

'Where exceptions are taken or there is a demurrer to evidence, the party shall not be required to prepare at the trial his bill of exceptions, or demurrer or statement of evidence, but shall merely reduce such exceptions to writing, or make a minute of the demurrer to the evidence, as the case may be, and deliver it to the judge. The bill of demurrer shall, within ten days after the determination of the trial, be drawn up, filed, and a copy be served on the attorney of the adverse party, who, within five days thereafter, may prepared, serve and file amendments thereto; and in default thereof the right to propose amendments shall be deemed waived, in which case within five days thereafter the proposed bill may be presented by the moving party to the judge for allowance. * * * In all cases where a party proposing a bill of exceptions fails to present his bill, or bill and the proposed amendments, to the judge for allowance or settlement within the time limited as aforesaid, his bill of exceptions shall be deemed abandoned, and his right thereto waived.'

The verdict was returned and judgment entered on June 17, 1893, which was during the March term. The bill of exceptions was not presented for allowance or settlement, nor was the same allowed or settled and certified to, until September 18, 1893,-- 90 days subsequent to the verdict and entry of judgment. These proceedings were, however, still within the March term of the circuit court for the district of Nevada, the court having but two terms during the year,-- one being on the third Monday of March, and the other on the first Monday of November. 19 Stat. 4. No orders of court, or stipulations between the parties, extending the time within which to prepare and present the bill of exceptions, appear of record in the transcript. On June 24, 1893,--seven days subsequent to the verdict and judgment,-- notice of a motion for a new trial was given by plaintiff in error. This, however, was not disposed of until September 18, 1893, when as an alternative to the granting of a new trial, the defendant in error consented to a reduction of the verdict from $25,000 to $15,000.

According to the rules of the circuit court, above referred to, no further time having been granted by the court, or consented to by the parties, the time within which to file a bill of exceptions expired on June 27, 1893. By the strict terms of these rules, the bill of exceptions would be deemed to have been abandoned, and the right thereto waived. But adjudications in the supreme court of the United States and in the circuit court of appeals hold that rules of court fixing the time within which bills of exceptions are to be presented, allowed, or settled, and certified to by the trial judge, are merely directory. These decisions are to the effect that such rules do not control absolutely the action of the judge; that he is at liberty to depart from their terms, to subserve the ends of justice. U.S. v. Breitling (1857) 20 How. 254; Dredge v. Forsyth (1862) 2 Black, 568; Muller v. Ehlers (1875) 92 U.S. 249; Hunnicutt v. Peyton (1880) 102 U.S. 350; Chateaugay Ore & Iron Co., Petitioner (1888) 128 U.S. 544, 9 Sup.Ct. 150; Hume v. Bowie (1893) 148 U.S. 245, 13 Sup.Ct. 582. Such is the law of this circuit, as declared in the case of Southern Pac. Co. v. Hamilton, 4 C.C.A. 441. 54 F. 468, 474. In other words, these rules are regarded as rules of procedure, which may be dispensed with, in the discretion of the judge, provided, always, that the exceptions themselves are seasonably taken and reserved. As was tersely stated by the supreme court in Dredge v. Forsyth, supra:

'It is always allowable, if the exceptions be seasonably taken and reserved, that it may be drawn out in form, and sealed by the judge, afterwards; and the time within which it may be so drawn out and presented to the court must depend on the rules and practice of the court, and the judicial discretion of the presiding justice.'

But it would seem that the exercise of this discretion is limited under ordinary circumstances, to the same term in which judgment is rendered. Preble v. Bates, 40 F. 745. It cannot be done at a subsequent term, except, perhaps, under very extraordinary circumstances. See cases cited supra; also, Bank v. Eldred, 143 U.S. 293, 12 Sup.Ct. 450; U.S. v. Jones, 149 U.S. 262, 13 Sup.Ct. 840; Morse v. Anderson, 150 U.S. 156, 14 Sup.Ct. 43; Ward v. Cochran, 150 U.S. 597, 602, 14 Sup.Ct. 230; Railway Co. v. Russell, 9 C.C.A. 108, 60 F. 501; Miller v. Morgan, 14 C.C.A. 312, 67 F. 82. No such objection arises here, however, since the bill of exceptions was settled and certified to within the same term that the verdict and judgment were entered. The trial judge being empowered, according to the weight of authority, with a discretion as to when a bill of exceptions should be settled and certified to (so long as it is within the same term that judgment was entered and, it would seem, under very extraordinary circumstances, beyond the term at which judgment has been rendered), the question which we are called upon to determine in this case is whether this discretion has been abused. We entertain no doubt that this question should be answered in the negative. There is not the slightest intimation that this discretion has been exercised to the detriment of the substantial rights of the parties. But aside from the general and inherent power possessed by courts to suspend their own rules, or to except from their provisions a particular case, to subserve the ends of justice, we think that the pendency of the motion for a new trial is a sufficient reason in this case why the action of the trial court in settling and certifying to the bill of exceptions should be sustained. It appears that the bill was settled and certified to on the day the court disposed of the motion for a new trial, viz. on September 18, 1893. The function of a bill of exceptions is to make a record for the appellate court. Black, Law Dict.; Bouv. Law Dict.; Yates v. Smith, 40 Cal. 669. Had the motion for a new trial prevailed, it is obvious that the labor of engrossing...