Opposition Brief — Century Indemnity Co. v. Nelson

Subject Index

Concerning statement of the case. .

-

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Concerning proceedings to date.........

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First reason assigned by petitioner.........

Second reason assigned by petitioner........

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BE | Table of Authorities Cited

; ;

1a . Pages

|} ia ims ot Tie, GT Be ia kkk ns Ken nccenceus 14

mi -. Armstrong v. Metropolitan Life Ins. Co. (CCA 8), 85 F.

4 EE cea ces GA SURE SAGO SOR ns Re eeanskne cena 8

a | Arthur C. Harvey Co. vy. Malley, : 288 U. §. 415, 77 L. Ed.

P| dene thwakne ee sche s tek wenn daeteeeees WEeRekenns 11

q id Babbit Bros. Trading Co. vw New Home Sowing Machine

i Pe ey EP Me cs pick csecdesoscescnecnas 7

Berges v. Abraham, 65 F. (2d) -765........ eats aautae ‘19, 22, 23

Century Furniture Co. v. Bernhard’s, Inc. (CCA 9), 82

BE. OE ci Jone Sac mr CGN wana ohne Races Ban he 14

i= Columbia Nat. Life Ins. Co. v. Griffith (CCA 8), 73 F. (24)

i” Ml. 6cb chalnentensesddke debe anbkddeeesee hs usa dnasaes 8

4 _, Continental Bank v. National — Bank, ete. (CCA 9), 69

: F. (2d) B12 2... LR RS Pe OEE PEPE Pee 7, 8, 10

Denver Live Stock Com. Co, v. Lee (CCA 8), 18 F. (2a) il 13

Federal Intermediate Credit Bank of Omaha v. L’Herisson

; (CCA 8), 3B FP. (2d) S42... 2... cece cece sete ce eceeses 13

' Fidelity & Deposit Co..of Maryland v. U. S. ex pr Woods

ee ee es A dw ken dda Weaenseweeaness 13

First Nat. Bank of San Rafael v. Philippine Corp: (CCA 9),

aie °° Os pce edeagiebent neheackserdeckssnass 8

ae Ona He #9. 270 U. 8. 349, 70 L. Ed, 624.. 16

) Huron College v. Union. County Trust Co. (CCA 8), 77

: F. (24) @09 ....:. pGesseetelususess rrr rer Creer 8, 14

| - Inland Irving Nat. Bank of Chicago v. American Flange

if an and Mfg. Co. (CCA 7), 75 F. (2d) 553........ batanawa 8

if i | ; Kansas Society Life Ins. Co. v. Shirk et al, (CCA 10), 50

1 F. (2d) SN ck cde lecnbdhevdschantecseeeeasous seats 13

ae 3% v. Mauiteble Life Aen. Society of U. S. (CCA 9), 84

il. PM is acadstevsndsagscatednress hie incase’ 6, 8, 14

a ite v. Phillips Setestoom: Co. boa 8), 72 F. (2d) 347... 13

| ‘Manual of Fed. App. Procedure (2d Ed:)........... ere 7

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TasLe or AuTHORITIES CITED iii

Pages

McLaughlin v. Pac. Lumber Co., 293 U. S.- 351, 55 S. Ct.

219, 79 Ce, SR scan skseedeseendudeeensewees eseees 14

Mercantile Trust Co. v. Wood, 60 Fed. 346........ errr 14, 15

“— Bros. Const. Co. et al. v. U. S. ete. (CCA 9), 75

et | oh, errr Pry errr rr rere rrr rr ore ' 13

Mides parma Bank v. Ringling (CCA 9), 7 F. (2d) 535.. 13

Sanders v. Magill, 94 Cal. Dec. 34...... Voc daueecenaanees 25

Sanfeliz v. Bank of Nova Scotia (CCA 1), 74 F. (2d) 338... 8

“Thompson Starrett Co. v. La Belle Iron Works, 17 F. (2d): _

536 ee Preeen pre in re errr he ee tT eg Te? 15

-.U. S. F. & G. Co. v. Board of Cininsiadaninie, 145 Fed. 144 15

U. S. v. Martin, ete. (CCA 10), 80 F. (2d) 460...... pee as 14

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- OF THE

| United States

OctToBER TERM, 1937

No. 362

THe Century INDEMNITY CoMPANY ;

(a corporation),- | -

ails Petitioner,

VS. ¢

G. NELson, core a

: y Respondent. |

Seer = pe

BRIEF FOR RESPONDENT

IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

to the United States Circuit Court of Appeals”

* for the Ninth Circuit. ie |

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CONCERNING PROCEEDINGS TO DATE.

Petitioner’s: ‘‘Summary Statement of Proceedings

- Below” (Pet. page 2) fails to inform the court that

‘after the decision of the Cireuit Court of Appeals on

the first appeal (65 Fed. (2d) 765) wherein judg-

ment for petitioner on the first trial was reversed

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SOIC OL ET SOME I WREST ST ERD Sosiek » AiG Reales Sepia of hit

_the petitioner, as losing respondent on that appeal,

applied to this court for a writ of certiorari and its

_ petition was denied.- (Century Indemnity Co. v. Nel-

son, Oct. Term 1933, No. 456, November 6, 1933, 290

U.S. 683, ‘78 L. Ed. 588.) This bears’ sanenety. on

ff petitioner’ s claim here of “plain errer” , as will later

“appear.

* Both opinions of the Circuit COhert of Appeal’ on

the present appeal are now reported in 90 Féd. (2d)

644 where the opinion on rehearing is treated as an

amendment of the original opinion, just as it is on

the record here.

II, .

CONCERNING STATEMENT OF THE CASE.

Some, additions should be made to petitioner’s

‘‘Summary Statement of.the Case”. We will make

these additions in connection with the points to, _—

_ specifically apply. ta 4 “1

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; FIRST REASON ASSIGNED BY PETITIONER. :

It is (Pet. page 12) that the Circuit Court of Ap- -

peals erred in refusing to review the action of the trial

judge in adopting the findings proposed by respondent

and in reje¢ting the findings proposed by petitioner

on the ground that such proceedings did not occur

‘during the progress of the trial”. (28 U.S.C. A. __

See. 875.) Thereby the Appellate Gourt refused to ~

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pass on the question whether or not the findings have

support in the evidence and .on other questions

appellant sought to raise on the basis of these sammie

actions of the trial court.

_ The bill of exceptions in the record reads (pages |

130-131): | ? |

‘Mr. Wiseearver (Atty. for Petitioner). I

wish also at this time to make a motion for judg-

@ment and findings. Ta,

Mr. Hadsell (Atty. for Respondent). We do

the same on behalf of the plaintiff, for the full

“Amount, and request findings.

Thereafter, the. case was orally argued before

the court-and was submitted upon wyitten briefs.

Thereafter and on June 1, 1934, ang outside the

presence of the parties, the Court made and en-

tered its order granting judgment to the plaintiff

with findings to be submitted. Thereafter pro-

posed findings of fact and conclusions; of law were _

served and lodged with the, Court by plaintiff, and _

within the time allowed by law the defendant

served and lodged its proposed special findings

- of fact and conclusions of law in lieu of those

proposed. by the plaintiff.

Thereafter and on June 16, 1934 the Court, -

without the presence of the parties, signed the

proposed special findings _of fact and eonclusi —_

of law of the plaintiff and filed same on said date

as the findings and conclusions of the Court, and

judgment was entered on said June 16, 1934.”

The order of the trial court for judgment is at page

21 of the record and reads:

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. “This case having been heretofore heard and

' submitted and due consideration having been had,

' tt is ordered that judgment be entered for plain-—

tiff, with interest and costs, upon findipgs of facts

and conclusions of law to be presented.’ 8

So, plainly the trial had been ssiciicillt with the sub-

mission for decision. . .

The court will note:

1. That petitioner’ s motion ap Sindbis did

not specify any: finding whatever that petitioner

desired the trial-court to make and that petitioner -

- with its motion did not offer any findings;

2. That petitioner’s motion as. made was for

_“findings’’. generally and not for any “special

findings”’ then. and there offered ; ee =P

3, That petitioner’s motion did not \ ete,

even generally, what petitioner thought or de-

' sired the purport of the findings should be and

that the petitioner did not “state any — for -

the motion. .

Phe court further will observe that péiftioner’ s chal-

e to the-findings actually made comes by a single

assionment of error filed after judgment (Record

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ip | page 138, Assignment No. 21) and directed only to

Ra one finding, and that.petitioner’s challenge to failures

Pie to find come by ‘other assignments numbered.2, 3, 4,

|| °* 5, 6,8, 9, 10,11, 12, 13, 14,.15, 16, 20 and 24.

trict Court (quoted in full at page 5 of the’ Petition.)

that in this action the making of special findings of

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The court will also note from Rule 42, of the Dis: .:

| “fact is ‘‘in the discretion. of the court’’ and that the

rule provides the procedure by which the trial court

will exercise such discretion.

>. 7 it is important that there shall not be confused

_ into. one thing twa very separate things, namely :

(a) a request for particular findings to a par-

_ ticular effect and in particular cay 2 is, a

| request that the court adopt findings t the

- party has formulated and submits to the court

with the ‘request ; and,

(b) a request that when the trial court shall

‘2 decide a case on the law side it shall exercise its

discretion to make findings by directing that find-

ings shall be made to conform to the court’s de- .

cision.

. To ask for a ees finding to a particular. effect

is one thing; te ask generally that the court make

findings is quite another thing.

__ -To ask the court to make a particular finding to a

particular effect is like asking the courtsto give séme

_ specific instruction to a jury. When the request for

the instraction is made the instruction must be sub-

- , mitted with the .equest. Otherwise the trial court does

not err in failing or refusing to give the instruction.

So here. If, when petitioner ¢sked the trial

to make findings, the petitioner wanted findi

particular words or to a particular effect, petitioner -

then and there should have presented the formulated

'. findings that petitioner wanted the trial court to make.

But: es did not do so. The trial ‘then closed

%

"and the cause was submitted for decision as the record

clearly states. There was no reservation made by |

either. party of any right to’ offer or file proposed _ —

special findings in support of such party’s motion for —

_ findings. The submission for ‘decision was complete.

The “progress of the trial’? was done. - -

’ “When the triaf court; then, was considering the

ease after the parties’ stbmission of the case for de-

cision, the court did not have before’it for gensidera-

'= tion any “‘special findings” whatever as requested by

either party. It was under. these circumstances that “

subsequently, as the bill of. exceptions states, “the. -

court madé and entered its order granting judgment

to the plaintiff with findings to be prepared”’.

Very“hpposite to our case are the words of this —

same Circuit Court of Appeals in a case decided some

. weeks later Than the first decision on the present -

, appeal—Lando -v. Equitable Life Assur. Soc., 84 Fed. -

(2d) 640. Justice Denman, who dissents here heey

* phase of our case, there said for the court: baa

‘‘A jury was properly waived, and prior to the —

submission of the case the insured .appellant

+. moved for j ent in his favor.and also moved

** for ‘special findings. Appellant did: not specify

the ultimate facts desired to be found. His mere

‘ motion that the court make findings one way or

another as to the ultimate facts is not a request

for. findings of specific facts sufficient in itself to

warrant. a review of the evidence. Seaboard

'~ Surety Co. v. U. S., B& F. (2d) 348, decided by,

this court on June 8, . So far as advising the

lower court of the claim that! the evidence re-

quired a judgment in his sever, the situation is

the same as.if the appellant had made no more

than a motion for such a judgme

See reference to this case in note to the court’s second

opinion here.’ (Record page 170.) = = ~ +»

Mr. Paul P. O’Brien, Clerk for the Circuit Court

~ | of Appeals for the Ninth Circuit, published in 1929,

for the help of attorneys conducting appeals, a book

entitled “‘Manual of Federal Appellate Procedure’

(Second Edition) to which he also publishes cumu-

lative supplements. In the, “1937—Cumulative Sup-

- plement’’, dated oe 1, 1937, he states at pages

9-10: *

‘“A request for po Ee or for a “declaration

: deci or for special findings of fact and conclu-

of law, made after the case has been sub- |

mi ‘and the trial judge has announced his

decision, but before formal judgthent has been

entered, -comes too late and ‘is not made ‘during -

the progress of the trial’ as required by Par. 700

R. S. (28 USCA See..875). It is esseatial that —

such motiohs be made at or before the submission

. of the cause for decision, both in a case submitted

* upon an agreed statement of all the ultimate

facts, Lore

out a wa:

His citations ares | ~

Continental -Bauk v. National City Penh, etc.”

- (CCA 9), 69 F. (2d) 312;

| - Babbitt Bros. Trading Co. v) New Home Sew-

, ing Machine~Co. (CCA 9), 62 F. (2d) 530,

a 536, co conlturring 0} opinion of besa C. J.;

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‘Columbia Nat. Life Ins. Cp. v. Griffith (COA “

73 FB. (24) 244, 248;

5 Sanfeliz v. Rank of Novis Scotia (OCA )), 74

‘F. (2d) 338;

> Huron College v. Union Cael Trust Co,

(CCA 8), 77 F. (2d) 609;

Intand, Irving Nat. Bank of Chicago v, Ameri-~

can Flange and Mfg. Co. stam 1), 75 FB.

(2d) 553; ¢

* Corp. (OCA 9), 51 F. (2d) 218;

Lando v. Equitable Life Ass. Sasinty of U: 8.

(CCA 9), 84 F. (2d) 640;

. Armstrong v. Masopitian Infe Ins. Co.

of

‘Conte Indemnity Co. v. “Nelson (CCA 9).

Of these cases Continental Bank v. National City

- Bank, ete. (COA 9), 69 Fed. (2d) 312; is an important .

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the’ opinion for the court, saying : | r

“N evertheless, the question remains whether or

not rulings made and exceptions thereto. taken,

case. J udge Mack of New York, sitting here, wrote

not merely after submission of the case, but even.

a aioe fotpmaeh by the court of its opinion

> and inte judgment, but before. rendition of

' the final’ judgment, are. made and taken. ‘in the

. First Nat. Bank of San Rafael v. Philippine |

— (CCA 8), 85 F. (2d) 185, and the + case

»

progress of the trial.’ Ti.the opinion in Edwards

_v. Robinson, supra (8 Fed. (2d) 726, 727—CCA

9), an examination of the record discloses what is

. not entirely clear from the opinion, that there, as

. here, the declarations: of law were requested some .

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time after the judge had filed his opinion which |

concluded with the words ‘the complaint will be

dismissed’—but also some time. before the ‘trial

- judge signed and filed the actual judgmeyt of dis-

missal and his own findings. This court there

said that no motion or request for a finding in

favor of. plaintrff was made ‘until long after the

*

close of the trial, and not until 10 days after a

decision in favor of the defendants hadébeen an-

nounced by the court.. Under such circumstances,

we are without jurisdiction to consider the suf-

_ ficiency of the testimony to support the findings.’

‘There are also expressions of opinion in -other

cases that,. for these purposes, the progress. of the

_ trial is concluded when the cause is submitted to

the judge, or at least when hé announces his deci-

sion. See Babbitt Bros. Trading Co. v. New Home

Sewing Machine Co., 62 F. (2d) 530, 535, 536

(CCA 9th, 1932) (J udge Wilbur’s concurring

., Opinion) ; Merriant v. Huselton, 45 F. (2d) 983

_ C.C. A. 8th, 1930); United States v. Smith, 39 F.

(2d), 851, 854 (C,C.A. Ist, 1930); Southern

Surety Cor of Des. ‘Moines v. United States, 23 |

F. (2d) 55, 58 (C.C.A. 8th, 1927); Ewert v.

-. Thompson, 281 F. 449, 450 ((C. C: A. 8th, 1922).

- This interpretation accords with the function. of

_the request for ruling and exception to the denial:

_ thereof; it is to direct the judge’s attention to the

. specific proposition of law relied upon, so that

' prior to the announcement of his conclusions he .

may have the opportunity to consider it. True it

is that after entry, and until the end of the term

during which, the judgment has been entered, it

may .be set aside. and a new trial granted or if

tried without jury, a fie site mania’ entered,

9

- untenable and in conflict with the decision of a

ae. ot

. That, however, is‘ a matter entirely witiiin the

court’s discretion, and offers no guide tothe scopé>/

of the general rule. We conclude that there were -

ho rulings ‘in the progress of the trial’, properly -

before us for review, other than that on the evi-

: dence coeur considered.”’ a

This hindeiaes was made for the Ninth Circuit long.

before the second trial of our case and was therefore

available as a guide to petitioner on such trial.

Thereupon the Continental N ational Bank peti-

tioned this court for a writ of certiorari-in. a cause

entitled ‘Continental National Bank v. National City

~ Bank of, New York, and numbered 34 in October Term

. 1933. The petition was denied. (293 U.S. 557, 79 L.

Ed. 659.) One of the reasons urged for the petition .

was that the decision of the Circuit Court of Appeals

on the question in procedure, as above quoted, ‘

Circuit Court of Appeals on the same matter and in

conflict with the weight of authority.’’ nate | Pet. page

11.) Said petitioner:

_ “This case having been ‘tried before ‘a judge,

without a jury, on a stipulation of facts spread ‘at

large upon the record and having special findings

of fact and conclusions of law signed. incorporat-

ing such stipulation of facts, the Circuit Court of —

Appeals erroneously refused to review the facts

© 4 ascertain if the same supported the judgment,

because of an alleged failure to reqfiest a declara-

tion of rieey prior to the minute order for judg-

me

Citing cases.

11

Also (page 12): 7

“If such request for a declaration of law were

necessary, then.timely application therefor was

made by petitioners as such application was made

before final judgment and in the same term of

court.”’ a

This reason for -the petition was stated also in the

specifications of errors (Pet. page 21) and at pages oy

33-36 of the petition authorities and argument. are

_ presented for the contention. ‘The respondent filed a

brief in opposition to the petition wherein at pages"

19-23 respondent distinguished or discounted peti-

tioner’s authorities and cited many authorities against

petitioner’s contention. Therefore we would urge

upon the court that its denial of the petition was.in -—

effect an affirmance of Judge Mack’s opinion and is

decisive against the petitioner in the present pro-..

ceeding.

We fortify this conclusion ‘with what this court .

itself, in Arthur C. Harvey Co. v. Malley, 288 U. S. 5

415, 418, 77 L. Ed. 866, 867, approved as rightly said

in that*case. by the Cireuit Court of Appeals for the |

First Circuit: oa ;

‘‘Exceptions, following an order of ied

to alleged rulings in a written opinion of the ©

judge assigning reasons for ordering a judgment

for either party, are not rulings in the course of

the trial.’’

So here—exceptions to findings proposed by re-

spondent and adopted by the court after the order for

judgment for respondent was made ‘‘are not rulings

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in thé course of the trial’’; and the same is true of

exceptions to the trial court’s rejection of findings

proposed by petitioner — —— to the

order for Judgment.

The specific order of the salon in our case was that

‘‘judgmenit be entered for plaintiff * * * upon-findings

of fact * * *to be presented.’ Thereby the court had

determined what the findings should do; namely, that

the findings should find the facts as respondent con-

tended them to be and as entitled plaintiff to judg-

ment. In effect the trial court had then ruled on the

facts and’the law and the trial had then ended in any

event—even if the trial had not ended previously when

the parties had unreservedly submitted the cause for

decision. All that remained to be done was to formu:-

late findings that should comply with the trial court’s

order for judgment. There was to be no further

‘“‘trial’’.. ‘

Rule 42 of the District Court does not help peti-

tioner. The purpose of that rulé’was not to extend

the trial but simply to provide a means whereby the

trial court would secure aid in formulating findings

expressive of a decision already rendered. The Cir-

cuit Court of Appeals very properly so held in.its last

opinion for the reasons there stated. (Record page

170, Note 1.) . oe

This view of the rule is embodied, in effect, in

O’Brien’s 1937 Supplement where he states at page 9:

‘‘The making of special findings of fact in an

action at law, tried by the court, on the waiver of

a jury, is ey with the trial court, and

13

“ite sieht in making such findings, in refusing: to- -

«make- requested ‘findings, or -in refusing to amend

findings made, is not subject to exception, or to a

subsequent review in a federal appellate court”’;

and cites:

Denver Lite Stock Com. Co. v. Lee (COA t 8),

18 F. (2d) 11, 16;

Modoc County Bank v. Ringling (CCA 9), 7

F. (2d) 535, 5365

Kansas Society Life: Ins. Co. v. Shirk et al. .

(CCA 10), 50 F. (2d) 1046.

Later, at page 11, O’Brien states:

“whether the® record contains any substantial ‘evi-. -

dence to support the findings and judgment ~

against him, it is.incumbent ypon him to make a —

‘““Tf a party seeks to have reviewed the question

motion for judgment in his’ favor on that ground,

or to request a declaration of law to that effect, or

to take some other equivalent step, and secure a

ruling by the trial court, and to take exception to

such ruling ¢and include the same in bill of ex-

ceptions)”, = |

and cites to his statement:

_ Federal Intermediate Credit Bank of Onthe v.

L’Herisson (CCA 8), 33 F. (2d) 841, 843;

Lyle v. Phillips Petroleum Co. (CCA 8), 72. F.

(2d) 347;

. Fidelity & Deposit Co. of Maryland v. U. S. ex

rel. Woods (CCA 9), 72 F. (2d) 828; ,

_ Mittry Bros. Const. Co. et al. v. U.S. ete. (CCA

®); 15 F. (24) 79.

14

- See, also,

“hy Huron College v. Union County Trust Co.

ct | - (CCA 8), 77 F. (2d) 609;

McLaughlin v. Pac, Lumber Co., 293 U.S. 351, ,

55 S. Ct. 219, 79 L. Ed. 423; — |

U.S. v. Martin, ~_— 10), 80 F. (2d) 460;

Century Furniture Co. 'Bernhard’s, Ine.

(CCA 9),: 82 F. (2d) 206;

Lando v. Equitable Life Ass. Society of U.S.

(CCA 9), 84 &: (2d) 640. |

Plainly petitioner had not complied with any of these

requirements.

‘Phe cases cited by petitioner are not ogninet us.

In Alexaftder v. Machan, 147 U. S. 72, there were

sixteen exceptions to findings and thirty-five excep-

tions to refusals to find; and the statement. of this

court, as quoted from that case by petitioner, is quali-

fied by the clause “‘and an exception be taken’’. But

the court’s 6pinign does not say what the procedure

should be and the report does not disclose what the

actual procedure was. So the opinion is of no help |

here. re’ eu

- The case of Mercantile Trust Co. v..Wood, 60 Fed.

346, is in our favor because it says, as quoted by

petitioner: ; |

“The finding of the meee whether general or _

Special, performs the office of a verdict of a jury: |

When it is made and filed the trial is ended.

Exceptions to the finding or to statements of legal ©

conclusions contained in it, or in an opinion in

which-it is contained, or in an opinion filed with - -

— _ eas — bis nn 5 Ee Ee 2st a ie)

15

it, avail nothing. They are as futile as exceptions |

to the verdict of a jury.”’

So exceptions to the findings in our cage ‘‘avail noth-

Neither does U. S. F. & G. Co. v. Board of Commis-

sioners, 145 Fed. 144, aid petitioner. The same judge

wrote the opinion there as wrote the opinion in Mer- |

cantile Trust.Co: v. Wood, supra, and cited the earlier

case, with others, as deciding |

‘“'Phe trial ends only when the finding is filed, or, -

if no finding is filed before, when the judgment is -

rendered.”’

But, for the reason that the trial is ended when the

findings are filed, there cannot be any exception to the

. findings as the exception does not occur “‘during the

progress of the trial’’. Nor, after findings filed, can

there be any exceptions to any failures to make find-

ings; for the trial is ended and such exceptions come

too late. . oe oe .

Petitioner’s fourth case, Thompson-Starrett Co. v.

La Belle Iron Works, 17 Fed. (2d) 536, is also favor-

able to us rather than to petitioner. The quoted lan-

guage:

“Tt seems to us a needless and idle form to

require the party. aggrieved to request a ruling

that putative future findings, or special findings

already made, are without any evidence, and we

regard an exception taken on that ground befcre

final action of the court an exception to rulings

made ‘in the progress of the trial?”

ee er eae

. . .

.

— ee ee ee ee ee

pons means that it is sufficient, where special hiidinws

have already been’ made, to except, before final action

‘ of the. court, on the. ground that such findings are with-

. out evidence. But when findings have been filed final

action has béen taken and an exception eomes too late _

; * —the very thing that has happened in our case: |

at asf iy ” pate aa

lee | The correct procedure was forcibly ‘stated by this

Ete fh

y + - eourt in Fleischmann C. Co. v. U. S., 270 U.S. 349, 70

4 q L. Ed. 624, in these words: ;

1 ‘“To obtain a review by an secitiles court of the

: conclusions of law a party must either obtain

rail from the’trial court special findings which raise

ima _. the legal propositions, or present the propositions °

|e ’ of law to the court -and“obtain a ruling on them.

Hh nee ‘Norris v. J ackson, ‘supra, 129 (9 L. ed. 609); |

igi _ Martinton v. Fairbanks, 112 .U. S. 673, 28 L. ed.

lai. .°.. - 863, 5 Sup. Ct. Rep. 321. That is, as was said in ~

f + Humphreys ¥. Third Nat. Bank, 21 C. C. ‘A. 538,

“| « '- 430.8. App. 698, 75 Fed. 855, the should request

ee spetial findings of fact by the court, framed like

_a special verdict of a jury, and then reserve his

‘exceptions to those special findings, if he deems |

¢hem not to be sustained by any evidence; and if

_ he wishes to except to the conclusions of law drawn

by the court from the facts found he should have

them’ separately stated and excepted to. In this :

way, and in this way only, is it possible for him to

review completely the action of the court patow

:¢ upon the merits’.’’

i | a 7 "Petitioner failed completely to follow these require-

"SECOND REASON ASSIGNED BY PETITIONER.

-. he claim is that, despite insufficiency of: assign-

- ments and specifications of error, there is such ‘“plain)

error’’ inthe record that the Circuit Court of Appeals,

in its second opinion on this appeal, should have passed -

_ °‘on the merits.and should have reversed the judgment.

Te (a)

© Petitioner-admits (Pet. pAges 6-7) that the Circuit

Court. of Appeals, in its first opinion on this present

7 appeal, ‘decided the merits of the case ageinst peti-

tioner. Petitioner states:

“Notwithstanding a technical outlook on the

procedural aspect of the case the Circuit Court of

Appeals commented on the merits of the appeal

and concluded that the judgment possessed evi-

ey dentiary support (R. 163) ;-that the judgment was:

~ -supported by the findings of fact (R. 162); that aa

’ the judgment was not contrary to the law. of the

casé (R. 162); and that there was no error in-the .

rulings on.evidence (R. 162). It saw-no occasion

to notice plain error (R. 164).’’

If, then, the Cireuit Court of Appeals had, in its

"- second opinion, gone again into the merits there is no

reason to believe that the result would have been any

different.

' Why the Circuit Court of Appeals refused, in its

second opinion, to go into the merits is cléar enough. ~

i. ‘ For at the erid of its first opinion, after passing on the

- merits, it said — page 164):

207° Pit SUA abn SOL ia OTe OD aI ES Doe

b- 18 ; a“

‘There is,*therefofe, no reason for relaxing our

~ rule with reference to the specifications of error

and there’is no basis for relaxing the rule with

reference to assignments of error as should be

done only in case of Sggp lain error unassigned

(rule 11) and so clearly prejudicial.as to result in —

injustice. In re Morgan (C.C.A. 6), 26 F. (2d) |

183; Mutual Life Ens. ‘Co. v. Parkinson, C.C.A. 6),

72 FB. (2d) 759.”

= ~ 7 -

ee ee

s

aa °

ep RNP OSEEenteees cere nen epee

Li aa dn canine eS

eS ey ee: x - —

eee eae

-

ae That is, in the court ’s view, any refusal of the court to

lay recognize unassigned (or insufficiently assigned) plain

F ‘error on this appeal would not be “‘so clearly preju-

hi dicial as to result in injustice”. When, therefore, the.~

y court. in its second opinion concluded (as it had al-

ie | ready concluded in its first opinion) that the errors

4 on which petitioner really relied were not asdigned or

_ were not sufficiently assigned it had no-reason_ to go

- _ further to examine the ‘merits under any claim of

‘‘plain error unassigned’’. When the two opinions are

taken together they must be deemed to hold that on this

_ appeal the court would not overlook failures in assign-

ments and specifications and go into the merits of the

bo =

: LET

ve on et se ~ poe:

snakraaed SEae 4s Oe ee “

Tee eee scares Meme ent me

= .

——— nee

- ES

os

| | case on the basis of unassigned plain error—all for the

at » ‘reason thatrefusal to do so was not ‘‘so clearly preju-

is dicial as to result i in injustice”’.

ie

i Zz (b)

et Unassigned plain error will only be noticed where

he He -. d refugal to do so will be ‘‘so acd prejudicial as to

Ha _ result in injustice”. ,

. aes ‘The question then is:

(|. — . . Would, that be the case here?

ii

19

“In its first: opinion the Circuit Court of Appeals.

unanimously answered ‘‘no’’. After rehearing it main-.

tained its stand by majority vote.

. Even the dissenting opinion on the second decision

on this appeal does notsay that the merits of the case

should be otherwise decided than on thé first degision

on this appeal. Mr. J ustice Dennijar#imply egntends

‘that the decision on the rehearifg should be. on the -

merits and not on technical proceduré. For*in his view

there were sufficient assignments to justify that course.

To understand the problem we. must go back to the

first appeal.

On the first trial the Pe roll in ane v.

Abraham was admitted into evidence. (Record, page

45; No. 456 in this court for October term 1933.) In

its opinion on the first appeal (65 Fed. (2d) 765) the

Circuit Court of Appeals said (page 768) :

“According to, the findings of fact in the Supe-.

rior Court action the corporation, San Francisco

Iron & Metal Company, which is alleged to be one

of the copartners, together with L: Silberman, H.

‘Silberman, and N. Abraham, acting under the firm

name of N: Abraham Mercantile Company, was.

originally jointly liable for-the indebtedness sued

upon. N. Abraham Meréantile Compény, the co-

_ partnership, transferred all the property of the °

‘ _ eopartnership to the corporation in consideration

of an agreement on the part. of the corporation to

pay. all the debts of the former partnership. This

agreement would constitute the corporation a

principal and the members of the copartnership

and ~ copartnetatip | sureties. a, v. ‘Heim-

, ‘ . .

‘ ¥ : . ;

SG AmA ate RE EEN 4 iG. She Japan tt aia e .

SRM rw SR pete OS Sige

‘

“ 7 Spt es hs ab Se ee Cake Ee roel Pie ee a sre A ‘

aire RAT EES A NS gor hs Ry PERS a eS She

20

bach, 15 Cal. 261, 17 P. 199; Cutting Packing Ce

Tackeian? Exch.. 86 Cal. 574, 25 P. 52,10 L. R.A.

369, 21 Am. St. Rep. 63; Imperial Refining Co. v.

Kanotex. Refinery Co. (©. C. A.), 29 F. (2d) 193,

199.. If, therefore, the property seized by the |

sheriff was the property of the edrporation, justice —

would require that this property be first subjected

to the payment of.the judgment. fot which the

corporation .was primarily liable before’ the prop-

_erty of N. Abraham, one of the partners for which

-appellant.is surety, or of the other partners, is

applied to the judgment, although the corporation

is only a eo-judgment debtor upon the face of the .

' judgment.’

_ And then, in reversing the jadi. the court laid

- down the law for the case thus:

“Tf: it should. appear from the évidence upon a

new trial that there was sufficient property of the

San Francisco Tron & Metal Company seized by —

the sheriff to satisfy the judgment, then the appel- —

lant surety. (respondent on this second appeal),

representing. the rights of a joint debtor wk was

in law a surety on the obligation of that corpora-

‘tion, would be entitled. to enforce the entire judg-

ment against the property of the corporation and

therefore against the bond issued to release the

| property of the corporation,

“Tf, on the other hand, th aceaelly of the cor-

potation thus released is“insufficient to pay. the ©

judgment, the plaintiff (respondent on this second -

appeal) would be entitled to have the value thereof *.

first applied to the judgment and as to any balance

thereon to have.one-half of the remainder thereof

paid by L. Silberman and the enforcement of the

21

payment of that portion of the judgment against

the undertaking of the ee exeouted on his

behalf. sd

The judgment was reversed and ‘‘the case remanded

for further proceedings not inconsistent herewith’’.

"On the retrial the _ court’ — (Record, pages

39-41):

: “That thereaftér, on the 14th day of February,

1929, said bond was: amended ‘as hereinafter men-

tioned and a eiaaaar ial was entered into as fol-

lows: oe %

‘In the Superior Court of the State of =

California, in and for the City and.

‘County of San Francisco

No. 204,668 - |

V. Berges, ae

| | Plaintiff,

a | . > ; "

N.Abraham,etal, = | - ; me

’ Defendants. re, |

“Stipulation oe .

——e hereby stipulated and agreed between Bee

“plaintiff, defendants San Francisco Iron & we" 8

Company, a corporation, H. Silberman, Sr., H. ..-

Silberman, Jr., and L. Silberman and the Century ay

* Indemnity Company, as follows: | | oe

1. That the bond of the Century Indemnity Ee

Company dated February 14, 1929, be and it is’

hereby corrected so as to change “Silverman” to

“Silberman”. .

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. 2. That for the purposes of said bond, the plain-.

tiff has before February 14, 1929, attached prop-

_ erty, credits and effects of each of said four de-

fendants of the then value of $6000.00 each.

3. That said bénd supersedes and takes the

place of the Century Indemnity Company bond

heretofore filed in the above matter and said

me former bond is.hereby declared to be null and void ««

> and without effect. | :

Dated, February 14, 1929.

Robert E. Hatch,

_ Attorney for Plaintiff.

~ Louis E. Goodman, /

Attorney for Defendants.

The Century Indemnity Company, ~

By F.J. Crisp, a

Attorney t in Fact.’ ”’ 4

i we oo ‘

This accorded with the allegations of the complaint

(Record, pages 5-7) and the admissions in petitioner’s

answer. (Record, page 12.) So, by the very: stipulation. |

of this petitioner,.‘‘property, credits and effects” of

6 .

San Francisco Iron & Metal Company had been at-—

tachedgto the extent of $6000.00; and, as the amount of

. respofident’s claim‘(the judgment obtained by. Berges

in Berges v. Abraham et al.) was only $5643.65 prin--

cipal plus a little interest and some costs (Record,

' jage 105), the respondent became, as the Circuit Court -

of Appa ruled in its opinion on the first appeal,

_ “entitled to enforce the entire judgment against

| ' ‘the property: of the corporation and therefore

R against the bond issued to release the. hlltied “dl

the corporation’’. ee

23

The District Court accordingly followed the directions

of the Circuit Court of Appeals and gave judgment to

_ respondent on that basis. (Record, page 49.) The judg-

ment was for an even $6000.00 because the: principal,

interest and costs that had accumulated in Berges v.

Abraham et al. to date of commencement of this action

on September 24, 1931 exceeded — 00, tae principal

__ of petitioner’s bond. —

Also the District one again admitted in evidence

the judgment roll in Berges v. Abraham.: (Record,

page 58.) It also took additional evidence (Record,

- pages 119 to 130), namely the testimony of one Lon

_ Harry Silberman. In its first opinion on. this appeal

the court reviewed Silberman’s testimony ‘and said

(Record, page 163): |

‘‘This evidence -alone was suflicient to sienent

the implied conclusion of the trial court that the

San Francisco Iron-& Metal Company had. as-

sumed the obligations of the copartners. It is clear

he a that the judgment. and findings in action No.

. 204668 are conclusive that the indebtedness sued

upon was that of the partnership. It is therefore

- of no importance whether the findings in the supe- .

rior court No. 204668 relative to the assumption

of the entire debt by the San Francisco Iron &-

Metal Company is conclusive upon the parties to .

the action. We may assume as appellant contends

that without additional evidence it isnot.’

Whitefore it is clear epaihd argument that under the

law of the case as pronounced on the first — sos

judgment was correct.

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24

The substance of the decision on the first appeal i.

this: that Abraham and Silberman and San Francisco —

. Iron & Metal Company were partners or joint adven-

turers and incurred .a liability to the assignor of |

: Berges; that thereafter San Francisco Iron & Metal

Company assumed and agreed to pay the obligation ;

that Berges sued the three obligors and levied writs of

attachment upon them separately and Abraham put up

the bond of Fidelity & Casualty ‘Company of New York —

in release of the attachment on him and the Century

Indemnity Company put up.a similar bond on behalf

of Silberman and San Francisco Iron & Metal Com-

pany in release of attachments on them; that‘a judg-

ment was later obtained by Berges against the three

obligors and in the pleadings, findings .and judgment:

it was made to appear-that San Francisco Iron & Metal -

Company had assumed the obligation of the three

defendants to Berges’ assignor and had agreed to pay

it; and that under these circumstances, when Fidelity

& Casualty Company of New York paid Berges

through Nelson on the basis of its bond and taok an:

assignment of the judgment i in Nelson’ s name, Nelson

was entitled to recover the full ‘amount of Berges’

judgment from Century Indeyinity Company.

That is the basis on which the casé was retried and

then decided i in. respondent’ s favor. |

That -also constitutes the ‘unassigned plain error”’

. that petitioner ae to be ‘‘so atiiad ees as to

result i in injustice’’.

The injustice, if any, originated i in the law of the

_- Case as established on the first appeal—seemingly. ap-

proved by this court when it denied certiorari. ~

£0 2 RNR ee ta Re meet rere

95

But we submit that justice has been done for the

. reasons stated in the opinion of the Circuit Court of

Appeals on the first. appeal.

whe a a,

The second decision on this appeal was rendered

June 7, 1937. Petitioner promptly filed a petition for —

another rehearing and respondent replied. In our

reply we called the court ’s attention to a case. decided

by the Supreme Court of California on June 28, 1937,

entitled Sanders v. Magill, 94 Cal. Dec., page 34, where

that court has fully confirmed our position. There

Magill executed a note for $15,000.00 to a bank which

he secured by a deed of trust upon real property.

Later Magill transferred the property to one, Lyon,

who, by Magill’s deed to him, assumed and agreed to .- .—

pay the encumbrance. At a later date Lyon endorsed

and guaranteed the note at the bank and also pledged . :

_ with the bank certain shares of ‘stock which became aa

the subject matter of the suit. The court said: )

‘‘By this transaction, Lyon ‘became the principal

and the Magills the sureties of said note. (Braun

v. Crew, 183 Cal. 728; Williams -v. Naftziger, 103

Cal. 438, 440; Tompkins v. Powers, 106 Cal. App.

464, 466, and’ authorities cited in last cited case.)

a act of Lyon or of any subsequent owner of said

*- reel property could affect or in any way alter this

_ _xight of the Magills without their consent.

<A, H. Magill, being a surety on said note, even

~~. ‘though he was the original principal thereon, upon

| paying said note under compulsion, or voluntarily

acquiring the same by assignment was subrogated

to all vights of the bank in and to —_ note. ~

" 5 —. 2 Dh Rater gee; ‘3 es Eat er a MES et 8.3 2 ane ote OE gt, SE ee ee

PRES SRST IRIE PS EONS ES GE ORI AEE PIERS OE FEST SG PM

(Beach v. Waite, 21 Cal. App. 304, 307; Vincent

vy. Garland, 86 Cal. App. Dec.-5.) By right of

subrogation, or as’ the owner of said note by

written assignment from the bank, Magill could

proceed against all persons liable for the payment

of the balance due on said note. The acquiring of

an obligation by the surety does not. extinguish

the obligation, but the same remains in-full force

and effect in so far as the rights“of the surety to

recover from third parties liable upon the obliga-

tions are concerned. The bank then is in error in

contending that the pleadings and evidence show.

no right of recovery exists in favor of Magill.

Magill, not only had the right to pursue any en-

dorser of said note who was personally liable for

the balance due thereon, but he was entitled to any -

existing securities given for the purpose of secur-

ing payment of said promissory note. No rule of

_ law is more firmly established than that a surety

- upon payment of the principal obligation succeeds

to all the rights of the principal in and to said

obligation. (Secs. 2848 and 2849, Civ. Code; 23

Cal. Jur., p. 1078.) ”’

Fede PT PY tee Te eae

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RUNES Os RS

Accordingly, the court affirmed the jadgmans in

Magill’s favor against the bank for the recovery of the

stock pledged by Lyon to secure the note.

In our case Abraham is Magill and the San Fran-

cisco Iron & Metal Company is Lyon and the stock is

the bond of the Century Indemnity Company and the

bank is the Goodyear Redwood Lumber Company,

Berges’ assignor. :

, So the State Supreme Court has now established

the law of the state in accordance with the decision of

. . .

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_ the Cireuit Court of Appeals in our case and petitioner “

has no ground left for net. | sehr ) |

‘Doubtless the decision of the State Sborene Court. <-- '

convinced the Circuit Court of Appeals all the more

firmly that its refusal to notice petitioner’s claim of ©

.. unassigned plain error did not do petitioner any in-

justice. “i

We respectfully submit, therefore, that the petition _ ts

should be denied. <n ; \

Dated, San Francisco, California, ie

September 15, 1937. | |

- JoOEG.Sweer, .. | ‘ q

Counsel for Respondent. :

Hapse.y, Sweet, IncaLts & LAMB, |

D. HADSELL, ~

Of Counsel.

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