Spokane Interstate Fair Ass'n v. Fidelity & Deposit Co. of Maryland

• Decision Date: 18 October 1926
• Docket Number: No. 4900.,4900.
• Citation: 15 F.2d 48
• Parties: SPOKANE INTERSTATE FAIR ASS'N v. FIDELITY & DEPOSIT CO. OF MARYLAND.
• Court: U.S. Court of Appeals — Ninth Circuit

15 F.2d 48 (1926)

SPOKANE INTERSTATE FAIR ASS'N v. FIDELITY & DEPOSIT CO. OF MARYLAND.

No. 4900.

Circuit Court of Appeals, Ninth Circuit.

October 18, 1926.

Randall & Danskin and Graves, Kizer & Graves, all of Spokane, Wash., for plaintiff in error.

Williams & Cornelius, of Spokane, Wash., for defendant in error.

Before RUDKIN, Circuit Judge, and DIETRICH and KERRIGAN, District Judges.

DIETRICH, District Judge.

In our decision upon a former writ of error, to the report of which (8 F.2d 224), resort may be had for a circumstantial statement of the issues, we held that the coverage of the policy was only of loss by burglary accomplished by means of actual force and violence employed during the policy period, which was from August 31, 1924, to September 10, 1924. At a subsequent trial, defendant's motion for a nonsuit at the close of plaintiff's case in chief was granted, upon the ground that the evidence was insufficient to show force or violence within such period. The dismissal is assigned as error.

Defendant moves to strike from the record the bill of exceptions and also to dismiss the writ. We have considered, but do not deem it necessary to discuss at length, the issues presented by these motions. It is sufficient to say that, notwithstanding the general rule of the court providing that without consent of the parties extensions of the time in which to present a bill of exceptions or a petition for a new trial would not be granted for more than 30 days, the court had the power in the exercise of a sound discretion to grant a greater length of time. Poultney v. La Fayette, 12 Pet. 472, 9 L. Ed. 1161; U. S. v. Breitling, 20 How. 252, 15 L. Ed. 900; Hunnicutt v. Peyton, 102 U. S. 333, 353, 26 L. Ed. 113; Abbott v. Brown, 241 U. S. 606, 36 S. Ct. 689, 60 L. Ed. 1199; So. Pac. Co. v. Johnson, 59 F. 559, 16 C. C. A. 317; Russo-Chinese Bank v. National Bank, 187 F. 80, 109 C. C. A. 398; Czizek v. W. U. Tel. Co. (C. C. A.) 272 F. 223; Payne v. Garth (C. C. A.) 285 F. 301, 310. That being true, and the court still having jurisdiction to grant such extensions when the orders were made, neither motion is thought to be well taken, and both are therefore denied.

Upon the merits, it is first contended by plaintiff that by reason of the form and paragraphing of the policy the burden was upon defendant to show that the force employed in making the entry was not exerted within the insurance period. Apparently this is an afterthought, for in the trial plaintiff assumed the burden of establishing the affirmative; and it should not now be permitted to take a contrary position. Ky. Vermillion M. & C. Co. v. Norwich U. F. Ins. Soc., 146 F. 695, ...