Stoffregen v. Moore
| Decision Date | 06 April 1921 |
| Docket Number | 5710. |
| Citation | 271 F. 680 |
| Parties | STOFFREGEN v. MOORE, Collector of Internal Revenue. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Theodore Rassieur, of St. Louis, Mo. (Morton Jourdan and Thomas M Pierce, both of St. Louis, Mo., on the brief), for plaintiff in error.
John M Sternhagen, of New York City (James E. Carroll, U.S. Atty of St. Louis, Mo., and Carl A. Mapes and A. L. Boulware, both of Washington, D.C., on the brief), for defendant in error.
Before CARLAND, Circuit Judge, and LEWIS and COTTERAL, District judges.
The parties to this litigation will be referred to as they were in the trial court. The plaintiff commenced this action at law against the defendant to recover certain income taxes paid under protest. After issue joined a jury was duly waived and the action tried to the court. The court, after hearing the evidence, found the issues generally for the defendant, and entered judgment accordingly. The plaintiff brought the case here on writ of error.
Counsel for plaintiff assigns three errors. The first two assignments of error are to the effect that the court erred in making certain assumptions of fact. The third assignment of error is to the effect that the court erred in rendering judgment for the defendant, for the reason that under the law and the facts judgment ought to have been entered for the plaintiff.
The assumptions of fact complained of in assignments of error 1 and 2 are found, if anywhere, in a memorandum opinion of the trial court incorporated for some reason in what is called a bill of exceptions. These two assignments of error present nothing for review: First, because they are based upon the opinion of the court, which cannot be the basis of an assignment of error. The opinion may be wrong, and still the judgment be right. Second, we are by statute forbidden from reversing a judgment for error of fact on writ of error. Rev. St. Sec. 1011; Comp. Stat. Sec. 1672.
None of the assignments present anything for this court to review, for the reason that they are not based upon any ruling of the trial court, and in addition assignment No. 3 is too indefinite to present anything for consideration HERE. U.S. v. A., T. & S.F. Ry. Co., 270 F. 1, decided January 12, 1921; Mercantile Trust Co. v. Wood et al., 60 F. 346, 8 C.C.A. 658; United States Fidelity & Guaranty Co. v. Board of Com'rs of Woodson County, Kan., 145 F. 144, 76 C.C.A. 114; Webb et al. v. Nat. Bank of Republic of Chicago, 146 F. 717, 718, 719, 77 C.C.A. 143; Morris et al. v. Canda, 80 F. 739, 26 C.C.A. 128. As to using the memorandum opinion of the court as a basis for assignments of error see Roger v. Goldfield, Colo., 249 F. 39, 161 C.C.A. 99; U.S. v. Porter Fuel Co., 247 F. 769, 159 C.C.A. 627.
As to the proper practice to preserve questions for review in cases tried to the court...
To continue reading
Request your trial
-
Lahman v. Burnes Nat. Bank
...et al. (C. C. A.) 201 F. 893; Humphreys v. Third Nat. Bank (C. C. A.) 75 F. 852; McClay v. Fleming (C. C. A.) 271 F. 472; Stoffregen v. Moore (C. C. A.) 271 F. 680; Gartner v. Hays (C. C. A.) 272 F. 896; Pennok Oil Co. v. Roxana Pet. Co. (C. C. A.) 289 F. 416; Fleischmann Const. Co. v. U. S......
-
Stoody Co. v. Mills Alloys, 7059.
...pleadings and the proofs we may discover any tenable ground upon which it may be sustained.' Cases cited." Similarly, in Stoffregen v. Moore (C. C. A. 8) 271 F. 680, 681, the court said: "The assumptions of fact complained of in assignments of error 1 and 2 are found, if anywhere, in a memo......
-
Denver Live Stock Commission Co. v. Lee
...et al. (C. C. A.) 201 F. 893; Humphreys v. Third Nat. Bank (C. C. A.) 75 F. 852; McClay v. Fleming (C. C. A.) 271 F. 472; Stoffregen v. Moore (C. C. A.) 271 F. 680; Gartner v. Hays (C. C. A.) 272 F. 896; Pennok Oil Co. v. Roxana Petroleum Co. (C. C. A.) 289 F. 416; Fleischmann Construction ......
-
Flanagan v. Benson
...general to present any question for decision. Vandeventer et al. v. Traders' National Bank (C. C. A.) 241 F. 584, 587; Stoffregen v. Moore (C. C. A.) 271 F. 680, 681; Arkansas Anthracite Coal & Land Co. v. Stokes (C. C. A.) 277 F. 625, 627. There was no error in overruling the so-called ple......