Proctor Coal Co. v. United States Fidelity & Guaranty Co.

Fifth Circuit

Proctor Coal Co. v. United States Fidelity & Guaranty Co.

236 F. 910, 150 C.C.A. 172, 1916 U.S. App. LEXIS 2360

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 26, 1916

DocketNo. 2908

StatusPublished

This text of 236 F. 910 (Proctor Coal Co. v. United States Fidelity & Guaranty Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Proctor Coal Co. v. United States Fidelity & Guaranty Co., 236 F. 910, 150 C.C.A. 172, 1916 U.S. App. LEXIS 2360 (5th Cir. 1916).

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Opinion

PARDEE, Circuit Judge.

This is a suit on a guaranty bond. The errors assigned in the main writ are as follows:

“(1) The court erred in its ruling of .Tune 25, 1913, sustaining the defendant’s demurrer to the petition, and in holding that the plain tiff could recover only for loss sustained during the period covered by the last renewal of the guarantee bond sued on.

“(2) The court erred In rendering judgment in favor of the defendant on the question of liability of defendant to the plaintiff.

“(3) The court erred in rendering a judgment awarding a recovery of costs against the plaintiff.”

[1] The assignments of error on the cross-writ are contingent and in the alternative, and in the view we take of the case need not be considered.

[2, 3] During the progress of the trial, the parties waived a trial by jury and submitted the cause to the judge, who made a general finding in favor of the defendant. There was no agreed statement of facts, nor any special finding of facts. The opinions of the judge, filed during the progress of the trial, are argumentative, and can in no sense be taken as special or general findings of fact in the case. The bills of exception found in the record were not seasonably taken, the same being allowed long after the term of court at which the judgment was rendered was 'adjourned. The record discloses no order, agreement of counsel, nor rule of court extending the time for exceptions beyond the term at which the judgment complained of [912]*912was rendered. See United States v. Thibodeaux, 232 Fed. 92, — C. C. A. -, and generally Sierra Land & Live Stock Co., v. Desert Power & Mill Co., 229 Fed. 982, 144 C. C. 264.

None of the assignments of error on the main writ are well taken, and under the circumstances disclosed by the record we are con- ' strained to affirm the judgment; and it is so ordered.

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PARDEE, Circuit Judge.

This is a suit on a guaranty bond. The errors assigned in the main writ are as follows:

“(1) The court erred in its ruling of .Tune 25, 1913, sustaining the defendant’s demurrer to the petition, and in holding that the plain tiff could recover only for loss sustained during the period covered by the last renewal of the guarantee bond sued on.

“(2) The court erred In rendering judgment in favor of the defendant on the question of liability of defendant to the plaintiff.

“(3) The court erred in rendering a judgment awarding a recovery of costs against the plaintiff.”

[1] The assignments of error on the cross-writ are contingent and in the alternative, and in the view we take of the case need not be considered.

[2, 3] During the progress of the trial, the parties waived a trial by jury and submitted the cause to the judge, who made a general finding in favor of the defendant. There was no agreed statement of facts, nor any special finding of facts. The opinions of the judge, filed during the progress of the trial, are argumentative, and can in no sense be taken as special or general findings of fact in the case. The bills of exception found in the record were not seasonably taken, the same being allowed long after the term of court at which the judgment was rendered was 'adjourned. The record discloses no order, agreement of counsel, nor rule of court extending the time for exceptions beyond the term at which the judgment complained of [912]*912was rendered. See United States v. Thibodeaux, 232 Fed. 92, — C. C. A. -, and generally Sierra Land & Live Stock Co., v. Desert Power & Mill Co., 229 Fed. 982, 144 C. C. 264.

None of the assignments of error on the main writ are well taken, and under the circumstances disclosed by the record we are con- ' strained to affirm the judgment; and it is so ordered.

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236 F. 910, 150 C.C.A. 172, 1916 U.S. App. LEXIS 2360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/proctor-coal-co-v-united-states-fidelity-guaranty-co-ca5-1916.

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