85 F. 924 | 8th Cir. | 1898
after stating the case as above, delivered the opinion of the court.
Confining ourselves to the alleged errors which have been argued in the brief of counsel for the defendant below, the first error assigned is that the trial court should have sustained a motion to strike out certain testimony which was offered by the plaintiff relative to an item of indebtedness, amounting to $391.53, which the plaintiff testified was due to him from the defendant. The motion to suppress this testimony was based solely on the ground that the item of indebtedness in question was not sued for in the complaint. The trial court ruled to the contrary; holding, in substance, that the averments of the complaint were sufficient to warrant a recovery of the sum claimed. Upon a fair construction of the complaint, it appears, we think, that the plaintiff alleged that the defendant was indebted to him, not only. for the sum of $8,032.07, being the sum which the plaintiff had ex-pendéd in paying off mortgages on lots that had been conveyed to the defendant, but that he was also indebted to him to a certain amount for money actually advanced by the plaintiff, either for expenses incurred in negotiating the purchase of the land in controversy, or in making sales thereof. The plaintiff demanded a judgment for the sum .of $920, in addition to the sum of $8,032.07 expended in lifting the mortgages, which former sum, as we understand, was a balance which he claimed to be due to him for moneys actually paid out in conducting the joint transaction. The proof offered tended to show that, at a settlement which was had between the parties in the year 1891, it was mutually agreed that the sum of $391.53 was due to the plaintiff on the account above stated, and we perceive no reason why such proof should have been excluded. The allegations of the complaint, in our judgment, were sufficient to warrant it$ admission. What we have said on the last point will also serve to dispose of an objection that was made to the admission of three exhibits. These exhibits, it' seems, were papers which were used by the parties at the accounting when the item of indebtedness last mentioned was ascertained to be due to the plaintiff. After beingi duly identified as papers which figured at that settlement, they were offered by the plaintiff, and were received in evidence, as forming a part of that transaction. In this there was no error of which the defendant is justly entitled to complain.
It is further urged that the trial court abused its discretionary powers in refusing to permit the defendant to amend his answer during the progress of the trial, and after the case had been on trial for some time. We think that the reason assigned by the trial court for refusing such leave, which is disclosed by the bill of exceptions, is fully adequate to justify its action, — at all events, that we would not be justified in holding that it abused its discretion. The reason so assigned was, in substance, that the proposed amendment ought not to be allowed, because by permitting it an entirely new defense would
Another exception was taken to the introdnction of a paper purporting to be a satisfaction piece of certain mortgages, which was executed, as it .seems, by the Bank of West Superior. This was objected to because there was uo evidence, as it is claimed, that the bank by whom the satisfaction piece was executed was the owner of the mortgages. It appears, we think, with sufficient certainty, that the notes and mortgages were in the possession of the bank when the release thereof was executed, and that the bank had a sufficient title to the notes and mortgages at the time to enable it to execute valid releases. It does not appear that the validity of the release has ever been challenged by any one claiming a superior title to the mortgages. This exception is wholly without merit.
The next three exceptions to wdiich our attention is directed by the brief of counsel do not seem to be of sufficient importance to merit special notice, and we pass them by with the remark that in no event could the matters referred to iu those exceptions be regarded as of sufficient moment to justify a reversal of the judgment.
The last exception which we shall notice relates to an alleged error in overruling a motion, which was made by the defendant, at the conclusion of the plaintiff’s evidence, to dismiss the action because the plaintiff “had not made out a prima facie case.” An insuperable objection to any notice being taken of this assignment is — hirst, that the bill of exceptions does not state that it contains all of the plaintiff’s evidence, while it is apparent, we think, that the bill does not contain all of such testimony; and, second, that the defendant did not stand upon such motion after it was overruled, but introduced his own evidence at considerable1 length, and at the conclusion of the case did not renew his former motion. It is too well settled to admit of serious controversy that under these circumstances the action of the trial court upon the motion to dismiss the case is not open for review by an appellate court. Village of Alexandria v. Stabler, 4 U. S. App. 324, 1 C. C. A. 616, and 50 Fed. 689; Taylor-Craig Corp. v. Hage, 32 U. S. App. 548, 16 C. C. A. 339, and 69 Fed. 581; Insurance Co. v. Crandal, 120 U. S. 527, 7 Sup. Ct. 685; Railroad Co. v. Mares, 123 U. S. 710, 8 Sup. Ct. 321: Insurance Co. v. Smith. 124 U. S. 405, 424, 8 Sup. Ct. 534; Insurance Co. v. Unsell, 144 U. S. 439, 12 Sup. Ct. 671; Casualty Co. v. Schwerin, 26 C. C. A. 45, 80 Fed. 638. In this case, as in the one between the same parlies which was heretofore decided, the bill of exceptions does not contain the charge of the trial judge, and in other respects it would seem to have been very much abbreviated. It must be presumed, therefore, that the issues which are presented by the pleadings were submitted to the jury under instructions that af