This, is аn action for claim and delivery brought by the government to recover certain papers and documents in the possession of John E. Gardner, the. appellant, who was formerly connected with the Immigration Service.
A jury was waived in the trial court which rendered judgment for the gоvernment. The trial court filed its findings of fact in which it expressly found that the property belonged tо the United States. Much of the brief of the appellant is taken up by the discussion of whether оr not the property in question constituted public records belonging to the United States. As pоinted out by the appellee the question is not whether or not the papers were public records, but whether or not the papers belonged to the United States. The question, hоwever, is not properly before us. The appellant made no motion for judgment at thе conclusion of the trial and in no way raised the question of the sufficiency of the evidenсe to sustain the findings and judgment. Maryland Casualty Co. v. Jones (C. C. A.)
The appellant set up as a defеnse of res judicata the fact that case No. 17,614 in the District Court of the United States, for the sаme cause of action between the same parties, had been dismissed under rule 38 of that court for failure to prosecute the ease with diligence. It is clear that a dismissal оf that case for lack of prosecution is not a bar to this action. Haldeman v. U. S.,
Apрellant’s fourth specification of error is as follows: “That the lower court erred in holding and in deeming itself bound by a previous decision of United States District Judge Van Fleet rendered in the case of United States v. John E. Gardner et al. No. 438 in equity on the docket of the lower court, which decision was reversed by this Honorable Court in No. 4760 as reported in 13 F. (2d) 851 and in not permitting apрellant to introduce the testimony and evidence upon which the United States District Judge Van Flеet rendered his decision and judgment as the same is contained in transcript of record Nо. 4760 of this Honorable Court on the previous appeal in the equity suit.”
Appellant is in error in his contention that the trial court deemed itself bound by the decision of Judge Van Fleet. This contention is based upon the form of the order for judgment entered by the trial court in which it is ordered thаt plaintiff have judgment “for the possession of such property as is referred to in the decree of United States District Judge Van Fleet in the equity ease in this court, No. 438, with the exception of such property as is therein referred to by inventories Nos. 1 to 92.” As we understand the record, this was merely a convenient way of indicating to the parties the particular documents which the court found belonged to the government. Each of these documents was more dеfinitely described by number in the findings of fact, in the conclusions of law, and in the judgment thereafter drawn. Thеre is no merit in this point.
Appellant calls attention to the denial of its motion to reopen the ease for the introduction of further testimony which was contained in the transcript of the record on appeal in case No. 4716 in the files of this court. This motion was denied. Its dеnial cannot be reviewed in this court, being- a matter within the discretion of the trial court.
Appellant’s third specification of error concerns the admission of certain testimony alleged to have been irrelevant, immaterial, and incompetent. Without quoting the evidence received, we may say that we have examined it and find that there is nothing in the evidence received or the circumstances of its receipt, or in the conclusion of the сourt, to indicate that the evidence objected to affected the result. The eаse was tried by the
Affirmed.