2 F.2d 12 | 9th Cir. | 1924
In April, 1922, Nichols, defendant in error, brought action against the railway company, plaintiff in error, to recover damages for the death of his wife while a passenger on a train of the railway company. The defendant answered, denying negligence, and a jury having been waived by stipulation of the parties, the court niade findings to the effect that the allegations of the complaint and the amendment thereto, were true, except as, to the
Counsel for Nichols moves to strike the bill of exceptions from the transcript, upon the ground that no bill of exceptions was prepared, filed, or settled during the term of the District Court in which the case was tried, and that no extension of time was granted by the court in which to prepare, serve, or settle a bill of exceptions, and that the District Court was without power to settle a bill of exceptions two years after the close of the term.
The motion to strike is well taken. The essential purpose of an exception is to direct the mind of the trial judge to a single and precise point in which it is believed he has committed an error of law, so that he may reconsider and change his ruling, if satisfied of error, and that injustice and mistrials due to inadvertent errors may be obviated. United States v. U. S. Fidelity Co., 236 U. S. 512, 35 S. Ct. 298, 59 L. Ed. 696; Fillippon v. Albion Vein Slate Co., 250 U. S. 76, 39 S. Ct. 435, 63 L. Ed. 853. It is also well settled that a bill of exceptions, to be valid, must be for rulings excepted to at the trial. The hill need not be formally drawn and signed at the time the exceptions are noted, but it must appear that they were reserved during the progress of the trial. Johnson v. Garber, 73 F. 523, 19 C. C. A. 556.
In the record before us there is nothing to indicate that any bill of exceptions was presented to the judge of the District Court, or settled during the term at which the ease was tried, or at all, until after the entry of judgment of this court as affirmed by the Supreme Court on June 2, 1924. Nor was any order of court made extending the term of court beyond the usual time provided by the rules of the court. The fact that in 1922 the District Court ordered judgment in favor of the railway company did not relieve the plaintiff in error from preserving a hill of exceptions, provided it wished to obtain a review of rulings against it during the progress of the trial. The Supreme Court has recently said that no exception to the rulings at the trial can be considered by the Appellate Court, unless it was taken at the trial and has been embodied in a bill of exceptions presented to the judge at the same term, or within such further term allowed by order entered at that term, or by a standing rule of court, or by consent of the parties. Exporters v. Butterworth-Judson Co., 258 U. S. 365, 42 S. Ct. 331, 66 L. Ed. 663. It follows that, inasmuch as the term of court at which trial was had has long since expired, and, there being no showing that the court retained control over the case by a standing rule or special order, there was no authority in the District Court, after remand by the Supreme Court, to allow the bill of exceptions presented by the railway company. See United States v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 59 L. Ed. 129; Greyerbiehl v. Hughes Electric Co. (C. C. A.) 294 F. 802.
Plaintiff in error cites the opinion of this court in Pacific Bank v. Hannah, 90 F. 72, 32 C. C. A. 522, where it was said that the bill of exceptions, having been filed within the term at which judgment was rendered, was sufficient to preserve the rights of a party presenting the bill of exceptions for
Nichols also moves to dismiss the writ of error upon the ground that the judgment entered by the District Court on June 2, 1924, was a final judgment entered in pursuance to the mandate of the Supreme Court.
The case being restricted by what we have said upon the motion to strike the bill of exceptions, the present writ of error does not bring up the whole record for re-examination, but only such proceedings as may have arisen subsequent to the mandate. Stewart v. Salamon, 97 U. S. 361, 24 L. Ed. 1044; Tyler v. Maguire, 17 Wall. (84 U. S.) 253, 284, 21 L. Ed. 576. Examination of the record shows that the judgment entered was in exact accordance with our mandate and the mandate of the Supreme Court, and as nothing appears to have occurred in the progress of the execution of the judgment justifying re-examination, it follows the writ must be dismissed. Cook v. Burnley, 11 Wall. (78 U. S.) 672, 20 L. Ed. 29.
The motion to strike the bill of exceptions is granted, and the motion to dismiss the writ of error is allowed.