GUNNISON, District Judge.
From the foregoing statement it will be seen that the pleadings were duly settled, the’ cause tried by the court with the assistance of a jury, which returned special answers to questions propounded, the cause argued and submitted to the court, and that the court had' given a written opinion in the case; but no decree has ever been signed or entered. It therefore becomes a question whether the written opinion of the court filed in the cause is’ to be taken as the formal findings of fact and conclusions of law required by the Code. A perusal of section 372, p. 226; of the Code of Civil Procedure of Alaska, referring to the findings, etc., in equity causes, and section 209, p. 186, of the Code referring to findings, etc., where the cause is tried by thó court without a jury, make it plain that the opinion cannot, in any way one views it, be considered to be findings and conclusions, as required by the Code. The opinion is merely' a written argument or reason given by the court, to which reference is made in the last part of section 209 of the Code. Consequently the filing of plaintiffs’ motion for a new trial, January 27, 1907, was not timely, and was of no force or effect. Nor was the stipulation of January 9, 1907, of any [388]*388benefit. This was evidently the view taken by plaintiffs, since, as we have already seen, they subsequently filed a motion for permission to reopen the cause and introduce certain newly discovered evidence, and plaintiffs neither (stand upon nor urge this motion.
The attitude of plaintiffs and defendants toward the cause is somewhat similar, in that each is dissatisfied wi(h a portion of the court's decision, as indicated in the opinion. The defendants move for a modification of the decision; while the plaintiffs move to reopen the cause, and for permission to introduce certain newly discovered evidence.
The position of the defendants is somewhat complicated by the fact that subsequent to the filing of the mbtion for a modification of the decision, which is tantamount to a motion for a rehearing (18 Ency. P. & P.-), and which was timely, they have filed a motion for a judgment on the vefdict of the jury. If the cause had reached a point where a ‘motion for judgment were timely, the filing of such motion wpuld, in my opinion, supplant and supersede the motion for a rehearing— in other words, be deemed a waiver of that motibn; but as neither findings nor conclusions have been presented to the court, as. is the practice in this district, the filing of the motion for judgment was no more timely than plaintiffs’ motion for a new trial. Hence the cause must be deemed to stand now upon defendants’ motion for rehearing, which,is based on the records and files in the cause, and plaintiffs’ motion to reopen the cause, based upon the three affidavits alleging newly discovered evidence, already mentioned.
With respect to defendants’ motion for a rehearing, I have only to say that the evidence introduced on the trial of this cause, and the arguments and authorities presented‘by counsel, were carefully examined by the court when the written opinion in the cause was given, and counsel for defendants have presented nothing in their brief on this motion which has [389]*389altered the view on the subject that was reached by the court at that time. The court does not agree with counsel that the finding against which they direct their argument was unnecessary in order to pass upon the merits of the case as presented to the court.
Counsel also urge that the same question is involved directly in cause No. 604A, and that the question as to whether such a finding in cause No. 457A is merely obiter dictum, or whether it would be res adjudicata in cause No. 604A is such a close one that it, as counsel says, “might” necessitate extraordinary expense in appealing both cases 457A and 604A, in order to settle the question for the protection of the defendants. As to what is the evidence on this question in 604A, the court is not aware, as it has refrained from a careful examination of the testimony on that subject until the matter at bar is determined, lest the evidence in the two cases should be confused. The case at bar was tried, and the opinion of the court rendered, upon the evidence in this case. As the case now stands, the court is not at this time, we think, called upon to determine whether an opinion expressed or a fact found in 457A would bind the court in its decision of 604A, in which much and presumably different testimony from that in 457A has been taken. The motion for a rehearing, or, as counsel phrases it, the motion to strike from or modify the opinion of the court, should be denied.
We now turn to plaintiffs’ motion to reopen the cause, and for permission to. introduce further additional and newly-discovered evidence. As we have already indicated, the proceedings in the cause have not, as yet, reached the stage at which the filing of such a motion would be improper so far as the practice is concerned. No step in the case has been taken which would render the motion ineffectual. It is not a motion for a new trial, but a motion to reopen the case, and this motion may be made at any time before judgment. There [390]*390■is in the Code of Alaska no statutory limitationias to when such a motion shall be filed. Trial courts aré frequently requested at various stages of a cause to reopen it, and to admit evidence which has been overlooked or newly discovered. It is within the discretion of the court to grant such a request. 15 Ency. P. & P. 397. It is really a question of the order of and time in which proof may be introduced, and under the •Alaska Code of Civil Procedure (section 659, p. (281) this is regulated by the sound discretion of the court. Tfye reopening of a cause is not a matter of right, and, to invoke the action • of the court in this respect, the showing therefor must be something more than formal and perfunctory. This is particularly so when the application is made after considerable lapse of time, and when an application is so made it is not • regarded with favor by the courts. 18 Ency. P. & P. 18, 19. ■Where the application is made on the ground of newly discovered evidence, the courts have required that' all particulars be set up, not only in the petition in which such an application . is. usually made, but in the accompanying affidavits, and in ■ these-the nature of the evidence relied upon and the time when it first came to the knowledge of the applicant should be stated •'fully.. Allis v. Stowell (C. C.) 85 Fed. 481; McLeod v. New Albany, 66 Fed. 378, 13 C. C. A. 525; 18 Ency. iof P. & P. 23. Nor will a general averment of due diligence be sufficient. The facts and circumstances constituting such diligence must be specifically stated. Gillette v. Bate Refrigerating Co. (C. C.) 12 Fed. 108.
Plaintiffs have sought to comply with the rules of law upon these subjects. Their motion, which takes the place of the .petition by which the action of the court is usually invoked in this character of application, states these matters with some particularity. The accompanying affidavits are rather brief and general. Certain allegations or statements as to diligence are made in the motion and affidavits. Plaintiffs contend that, [391]*391since defendants have not filed counter affidavits, they must be taken as true. But defendants, in attacking the application, refer the court to the record in the case at bar and to that in 6'04A, of which the evidence sought to be introduced here is a part.
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GUNNISON, District Judge.
From the foregoing statement it will be seen that the pleadings were duly settled, the’ cause tried by the court with the assistance of a jury, which returned special answers to questions propounded, the cause argued and submitted to the court, and that the court had' given a written opinion in the case; but no decree has ever been signed or entered. It therefore becomes a question whether the written opinion of the court filed in the cause is’ to be taken as the formal findings of fact and conclusions of law required by the Code. A perusal of section 372, p. 226; of the Code of Civil Procedure of Alaska, referring to the findings, etc., in equity causes, and section 209, p. 186, of the Code referring to findings, etc., where the cause is tried by thó court without a jury, make it plain that the opinion cannot, in any way one views it, be considered to be findings and conclusions, as required by the Code. The opinion is merely' a written argument or reason given by the court, to which reference is made in the last part of section 209 of the Code. Consequently the filing of plaintiffs’ motion for a new trial, January 27, 1907, was not timely, and was of no force or effect. Nor was the stipulation of January 9, 1907, of any [388]*388benefit. This was evidently the view taken by plaintiffs, since, as we have already seen, they subsequently filed a motion for permission to reopen the cause and introduce certain newly discovered evidence, and plaintiffs neither (stand upon nor urge this motion.
The attitude of plaintiffs and defendants toward the cause is somewhat similar, in that each is dissatisfied wi(h a portion of the court's decision, as indicated in the opinion. The defendants move for a modification of the decision; while the plaintiffs move to reopen the cause, and for permission to introduce certain newly discovered evidence.
The position of the defendants is somewhat complicated by the fact that subsequent to the filing of the mbtion for a modification of the decision, which is tantamount to a motion for a rehearing (18 Ency. P. & P.-), and which was timely, they have filed a motion for a judgment on the vefdict of the jury. If the cause had reached a point where a ‘motion for judgment were timely, the filing of such motion wpuld, in my opinion, supplant and supersede the motion for a rehearing— in other words, be deemed a waiver of that motibn; but as neither findings nor conclusions have been presented to the court, as. is the practice in this district, the filing of the motion for judgment was no more timely than plaintiffs’ motion for a new trial. Hence the cause must be deemed to stand now upon defendants’ motion for rehearing, which,is based on the records and files in the cause, and plaintiffs’ motion to reopen the cause, based upon the three affidavits alleging newly discovered evidence, already mentioned.
With respect to defendants’ motion for a rehearing, I have only to say that the evidence introduced on the trial of this cause, and the arguments and authorities presented‘by counsel, were carefully examined by the court when the written opinion in the cause was given, and counsel for defendants have presented nothing in their brief on this motion which has [389]*389altered the view on the subject that was reached by the court at that time. The court does not agree with counsel that the finding against which they direct their argument was unnecessary in order to pass upon the merits of the case as presented to the court.
Counsel also urge that the same question is involved directly in cause No. 604A, and that the question as to whether such a finding in cause No. 457A is merely obiter dictum, or whether it would be res adjudicata in cause No. 604A is such a close one that it, as counsel says, “might” necessitate extraordinary expense in appealing both cases 457A and 604A, in order to settle the question for the protection of the defendants. As to what is the evidence on this question in 604A, the court is not aware, as it has refrained from a careful examination of the testimony on that subject until the matter at bar is determined, lest the evidence in the two cases should be confused. The case at bar was tried, and the opinion of the court rendered, upon the evidence in this case. As the case now stands, the court is not at this time, we think, called upon to determine whether an opinion expressed or a fact found in 457A would bind the court in its decision of 604A, in which much and presumably different testimony from that in 457A has been taken. The motion for a rehearing, or, as counsel phrases it, the motion to strike from or modify the opinion of the court, should be denied.
We now turn to plaintiffs’ motion to reopen the cause, and for permission to. introduce further additional and newly-discovered evidence. As we have already indicated, the proceedings in the cause have not, as yet, reached the stage at which the filing of such a motion would be improper so far as the practice is concerned. No step in the case has been taken which would render the motion ineffectual. It is not a motion for a new trial, but a motion to reopen the case, and this motion may be made at any time before judgment. There [390]*390■is in the Code of Alaska no statutory limitationias to when such a motion shall be filed. Trial courts aré frequently requested at various stages of a cause to reopen it, and to admit evidence which has been overlooked or newly discovered. It is within the discretion of the court to grant such a request. 15 Ency. P. & P. 397. It is really a question of the order of and time in which proof may be introduced, and under the •Alaska Code of Civil Procedure (section 659, p. (281) this is regulated by the sound discretion of the court. Tfye reopening of a cause is not a matter of right, and, to invoke the action • of the court in this respect, the showing therefor must be something more than formal and perfunctory. This is particularly so when the application is made after considerable lapse of time, and when an application is so made it is not • regarded with favor by the courts. 18 Ency. P. & P. 18, 19. ■Where the application is made on the ground of newly discovered evidence, the courts have required that' all particulars be set up, not only in the petition in which such an application . is. usually made, but in the accompanying affidavits, and in ■ these-the nature of the evidence relied upon and the time when it first came to the knowledge of the applicant should be stated •'fully.. Allis v. Stowell (C. C.) 85 Fed. 481; McLeod v. New Albany, 66 Fed. 378, 13 C. C. A. 525; 18 Ency. iof P. & P. 23. Nor will a general averment of due diligence be sufficient. The facts and circumstances constituting such diligence must be specifically stated. Gillette v. Bate Refrigerating Co. (C. C.) 12 Fed. 108.
Plaintiffs have sought to comply with the rules of law upon these subjects. Their motion, which takes the place of the .petition by which the action of the court is usually invoked in this character of application, states these matters with some particularity. The accompanying affidavits are rather brief and general. Certain allegations or statements as to diligence are made in the motion and affidavits. Plaintiffs contend that, [391]*391since defendants have not filed counter affidavits, they must be taken as true. But defendants, in attacking the application, refer the court to the record in the case at bar and to that in 6'04A, of which the evidence sought to be introduced here is a part. An examination of the pleadings in the case at bar and the dates of filing of the pleadings, files, taking of the evidence, etc., in the two causes, will be of assistance in considering whether or not plaintiffs have been diligent.
A comparison of the allegations of the first supplemental complaint in the case at bar, filed on January 17, 1906, with the affidavits now offered on this motion, makes it evident to the court that when that supplemental complaint was tendered plaintiffs were in possession of information from which the same deductions could be made as those which they now seek to introduce. The allegations of the first supplemental complaint bearing upon that situation were, on motion of the defendants, stricken, as raising a new issue, and evidence tendered on the trial along those lines was excluded, as not within the issues framed. A careful consideration of the record in the case and these affidavits indicates clearly to me that, while the exact measurements now tendered had not, and perhaps could not have, at the time of the trial, without endangering the town of Juneau, been made, the resulting conditions and the facts generally, aside from the measurements themselves, must have been in the minds of the plaintiffs when the supplemental complaint was tendered, and plaintiffs were bound at that time to ask an opportunity to make experiments and obtain the evidence before going to trial. The Supreme Court of California has said, in Lostus v. Fisher, 113 Cal. 286, 45 Pac. 328:
“A case will not be reopened to admit further evidence on behalf of the plaintiff, the existence and materiality of which were known to him before he closed his ease.”
[392]*392I think, from an examination of the record, files, and affidavits, it is presumable that the existence of this evidence must have been known to plaintiffs before they went to trial. Further than that, it appears from these affidavits that these measurements now tendered were made in April; 1906, and March, 1907, and it would seem that the exerqise of due diligence demanded that an application to reopen the case upon such evidence should have been made immediately1 these facts were known. On the contrary, the plaintiffs do not file this-motion until January 24, 1908. It is, of course, a fact that in March, 1907, the trial judge was absent from the division; but he returned in September. In any event, the (application should have been filed in March or April, 1907, eyen if not in April, 1906, when the first measurements were taken.
There appears to me to have been a lack of diligence on the part of plaintiffs, and the motion will be denied. !