Aetna Life Ins. v. Board of County Com'rs

Eighth Circuit

Aetna Life Ins. v. Board of County Com'rs

79 F. 575, 25 C.C.A. 94, 1897 U.S. App. LEXIS 2332

CourtCourt of Appeals for the Eighth Circuit

DecidedMarch 1, 1897

DocketNo. 834

StatusPublished

Cited by19 cases

This text of 79 F. 575 (Aetna Life Ins. v. Board of County Com'rs) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aetna Life Ins. v. Board of County Com'rs, 79 F. 575, 25 C.C.A. 94, 1897 U.S. App. LEXIS 2332 (8th Cir. 1897).

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Opinion

LOCHREN, District Judge,

after stating the case as above, delivered the opinion of the court.

1. It rested in the discretion of the court to make a general -finding, instead of special findings. The finding might be as general as the verdict of a jury, and have the same effect. Rev. St. U. S. § 649; City of Key West v. Baer, 13 C. C. A. 572, 66 Fed. 440.

2. The judgment entered on June 3, 1895, having, as appears by the statement of the judge, been inadvertently ordered to be entered, was properly, upon the judge’s own motion, three days later in the same term, set aside and held for naught. The court had full power over its judgments and orders to vacate them or correct them during the same term. Ex parte Lange, 18 Wall. 163 ; Goddard v. Ordway, 101 U. S. 752. The vacating of the judgment at the same term, because inadvertently entered, left the case as if said inadvertent judgment had never been entered.

3. The transcript shows (page 92) that the evidence was presented to the court, the arguments made, and the case taken under advisement by the court on December 13,1891. This was a submission of the case to the court, and the right of the plaintiff to have the action dismissed without prejudice then ceased. Such dismissal thereafter [577]*577could not be made without permission of the court, in its discretion. Code Civ. Proc. Kan. § 397; Mason v. Ryus, 26 Kan. 466. :

4. The memorandum of Judge Tviner, filed June 3, 1894, was, in substance, a general finding in favor of the "defendant; but, if that finding was defective in form, the general finding set forth in the record of December 4,1895, which was made when Judge Miner was on the bench, and which includes the ruling of the court upon the plaintiff’s motion to dismiss, was a sufficient general finding in the case in favor of the defendant, and the judgment thereupon was full and complete. The court might announce its findings in open court, and have them entered on the record, as well as to write them out and file them. The submission of the cause to the judge continued until the case was finally decided and judgment entered.

5. There are no exceptions in the case in respect to evidence offered or admitted. It does not appear that any evidence offered on behalf of the plaintiff was excluded, or that objections on the part of the plaintiff to evidence offered by the defendant were called to the attention of the court by any request, for a ruling thereon. Even in this record it is not indicated to what evidence the objections could have been pertinent* An objection, on whatever grounds, to “'sundry records and books,” etc., and to “oral and written testimony tending to establish all and every of the matters,” etc., is uncertain and meaningless. The judgment is affirmed.

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LOCHREN, District Judge,

after stating the case as above, delivered the opinion of the court.

1. It rested in the discretion of the court to make a general -finding, instead of special findings. The finding might be as general as the verdict of a jury, and have the same effect. Rev. St. U. S. § 649; City of Key West v. Baer, 13 C. C. A. 572, 66 Fed. 440.

2. The judgment entered on June 3, 1895, having, as appears by the statement of the judge, been inadvertently ordered to be entered, was properly, upon the judge’s own motion, three days later in the same term, set aside and held for naught. The court had full power over its judgments and orders to vacate them or correct them during the same term. Ex parte Lange, 18 Wall. 163 ; Goddard v. Ordway, 101 U. S. 752. The vacating of the judgment at the same term, because inadvertently entered, left the case as if said inadvertent judgment had never been entered.

3. The transcript shows (page 92) that the evidence was presented to the court, the arguments made, and the case taken under advisement by the court on December 13,1891. This was a submission of the case to the court, and the right of the plaintiff to have the action dismissed without prejudice then ceased. Such dismissal thereafter [577]*577could not be made without permission of the court, in its discretion. Code Civ. Proc. Kan. § 397; Mason v. Ryus, 26 Kan. 466. :

4. The memorandum of Judge Tviner, filed June 3, 1894, was, in substance, a general finding in favor of the "defendant; but, if that finding was defective in form, the general finding set forth in the record of December 4,1895, which was made when Judge Miner was on the bench, and which includes the ruling of the court upon the plaintiff’s motion to dismiss, was a sufficient general finding in the case in favor of the defendant, and the judgment thereupon was full and complete. The court might announce its findings in open court, and have them entered on the record, as well as to write them out and file them. The submission of the cause to the judge continued until the case was finally decided and judgment entered.

5. There are no exceptions in the case in respect to evidence offered or admitted. It does not appear that any evidence offered on behalf of the plaintiff was excluded, or that objections on the part of the plaintiff to evidence offered by the defendant were called to the attention of the court by any request, for a ruling thereon. Even in this record it is not indicated to what evidence the objections could have been pertinent* An objection, on whatever grounds, to “'sundry records and books,” etc., and to “oral and written testimony tending to establish all and every of the matters,” etc., is uncertain and meaningless. The judgment is affirmed.

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Bluebook (online)

79 F. 575, 25 C.C.A. 94, 1897 U.S. App. LEXIS 2332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aetna-life-ins-v-board-of-county-comrs-ca8-1897.

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