86 F. 877 | 5th Cir. | 1898
after stating the issues and proceedings as above, delivered the opinion of the court
The plaintiffs in error complain in their first assignment of error that the court below erred in reopening the case of the plaintiffs after they had formally closed their case, and after counsel for the defense had opened the case for the defendants, and in thereafter permitting the plaintiffs to offer further evidence. The bill of exceptions upon which this assignment is based shows the following proceeding:
“The counsel for plaintiff, after offering evidence, had formally announced that he had closed the case of plaintiff, whereupon counsel for defendant proceeded to open the case of defendant by addressing the jury, explaining the points on which he relied, and facts which he expected to prove, and, having closed his statement, was about to proceed to offer his evidence, when his honor, the judge, suspended the proceeding, and ordered the jury to retire; that, after the jury retired, his honor, the judge, addressed the counsel, and said to. the counsel for the plaintiff that he had failed to offer any proof of the paraphernality of the wife’s claim herein sued on, and inquired whether he desired to administer such proof; that thereupon,*882 after some discussion, the counsel for plaintiff expressed his desire then to offer such proof, and applied to he permitted to do so; that thereupon the counsel for defendants objected to the granting of the said application, on the ground that plaintiffs had formally closed their case, and that counsel for defendants had opened the case of defendants and that plaintiffs could offer no further •evidence, except in rebuttal of testimony which might be offered by defendants; that his honor, the judge, overruled the said objections, stating that it was a matter within his discretion; and that, if he should sustain such objections, it would furnish grounds for the granting of a new trial, and he therefore granted the application of counsel for plaintiff, and ordered them to proceed with the offering of their testimony.”
We understand it to be well settled that the order in which parties shall be permitted to offer their evidence in the trial of a case before a jury is a matter within the sound discretion of the trial judge. The facts recited in the bill do not show any abuse of such .sound discretion, nor any resulting injury to the plaintiffs in error.
The second assignment of error is that the court erred in charging the jury, and refusing each and every one of the 23 special charges stated at length in the hill of exceptions No. 2. The hill of exceptions No. 2 does not show any charge to the jury given by the trial judge, but does show that, after the plaintiffs and defendants had closed the case, and the same was about to be submitted to the jury, the court refused to give as special charges to the jury some 24 distinct propositions of law, many based on cited textbooks and adjudged cases, but not based on any evidence tending to show that any one of the propositions suggested was applicable to the facts in the case. It is plain that this assignment of error cannot be considered.
The fourth assignment.of error complains that the court entered judgment in favor of the plaintiffs against the defendants. This assignment is too general to be noticed.
There remains the third assignment of error, which complains that the trial judge stated to the jury that the evidence in the case established nothing that sustained any defense to the claim of plaintiffs, and directed the jury to find a verdict for-the plaintiffs. This assignment is not in pursuance of our rules. It is too general and indefinite; and, but for the briefs of counsel, we should be at a loss to know the specific error or errors presented for review. Sooner or later some important case that should be reversed on ■error will be affirmed simply because counsel will not heed the rules of this court in regard to pointing out in the assignment of errors the specific errors on which they rely. The general ruling complained of is shown by a bill of exceptions, to which is attached all the evidence adduced in the case, from an examination of which we find the material facts proved to he as follows: In July, 1885, R D. Bowen was employed by the firm of E. J. Hart & Co., and continued with that firm, occupying different positions, until March 15, 189C. At the beginning of his employment said firm was composed of E. J. Hart, Sr., and E. J. Hart, Jr., who continued to constitute the firm until the death of Hart, Sr., in March, 1895. Up to the death of E. J. Hart, Sr., no agreement was ever made as to the amount of salary to be received By Bowen, although
On these facts the trial judge directed a verdict for the plaintiff below on the ground that under them the defendants had no legitimate defense, and we agree with him in this conclusion. Under the facia proven, it does not appear that on a legitimate settle-inent and adjustment of accounts between R. D. Bowen and the firm of E. J. Hart & Co. (the claims and demands of Mrs. Bowen taken as valid) that Bowen is legitimately indebted to the firm in any sum whatever which could be offset against the demands in this suit, even if sued for by R. '>. Bowen as community property. There is no doubt, under the evidence, that the compensation for the services rendered by Bowen to the (inn of E. J. Hart & Co. was undetermined during the lifetime of E. J. Hart, Sr., and was a matter to be settled and adjusted, and, when settled, was to be in excess, not only of the pro forma crnli is "made on the books, but: in excess of the amounts which Bowen was allowed and did overdraw. Bowen thus had a legitimate claim for settlement with the linn of E. J. Hart & Co., and it was competent for E. J. Hart, Jr., the surviving partner, whether he was liquidating the partnership, or carrying on the same under the original articles of partnership, or with the consent of the heirs of E. J. Hart, Sr., to settle, adjust, and compromise the claim of Bowen. There is no dispute that tin's settlement adjusting and compromising the matters in dispute was made. After being made and executed, as it unquestionably was, it can only be avoided and set aside in a direct action for the purpose, and on grounds of error, mistake, or fraud. Certainly it cannot be attacked and annulled in a collateral action brought by Mrs. Bowen to recover her separate property. The $10,000 transferred from the credit of B. D. Bowen to the credit of Mrs. Bowen was a perfect transfer, accepted and recognized by the firm, and, if a gift from the husband to the wife, was perfected in sufficient compliance with the provisions of the Louisiana Revised Civil Code relating to manual gifts. See Stauffer v. Morgan, 39 La. Ann. 632, 2 South. 98.
The alleged radical and fundamental error committed by the judge a quo in directing a verdict for-the plaintiff, as assigned in the brief of (he plaintiffs in error, was in holding that the plaintiff could recover judgment without proof of the paraphernality of the claim sued upon. The record does not show that the judge so held, and, if he did, it was unnecessary. We agree with the learned