Reid v. Baker

Ninth Circuit

Reid v. Baker

17 F.2d 770, 1927 U.S. App. LEXIS 3045

Court of Appeals for the Ninth Circuit·Decided February 28, 1927·No. No. 5027·Published

Opinion

DIETRICH, Circuit Judge.

This is an action to recover damages for the mishandling of certain barrels of loganberries placed by plaintiff with the defendants for cold storage. Jury.was waived, and upon a general finding plaintiff had judgment, from which defendants bring error.

Admittedly the record is such that at most we can review only rulings of the lower court made in the progress of the trial and presented by the bill of exceptions. Edwards v. Robinson (C. C. A.) 8 F.(2d) 726; Wulfsohn v. Bank (C. C. A.) 11 F.(2d) 715; Swanson v. Continental Casualty Co. (C C. A.) 12 F.(2d) 410; Eleischmann Construction Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624.

The brief of plaintiffs in error wholly fails to comply with the requirements of our rule 24, subd. 2 (b), and upon a search of the record, with such assistance as counsel has given us, we find no plain error. The evidence, to the admission of which exceptions were taken, within the scope of the assignments of error, was substantially material in one aspect or another of the ease. The point that plaintiff sues upon a split cause of action, part of which was litigated in a former suit, necessarily involves a consideration of the evidence, and is therefore concluded by the general finding. Soeiété Nouvelle, etc., v. Barnaby (C. C. A.) 246 F. 68, 73.

Judgment affirmed.

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DIETRICH, Circuit Judge.

This is an action to recover damages for the mishandling of certain barrels of loganberries placed by plaintiff with the defendants for cold storage. Jury.was waived, and upon a general finding plaintiff had judgment, from which defendants bring error.

Admittedly the record is such that at most we can review only rulings of the lower court made in the progress of the trial and presented by the bill of exceptions. Edwards v. Robinson (C. C. A.) 8 F.(2d) 726; Wulfsohn v. Bank (C. C. A.) 11 F.(2d) 715; Swanson v. Continental Casualty Co. (C C. A.) 12 F.(2d) 410; Eleischmann Construction Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624.

The brief of plaintiffs in error wholly fails to comply with the requirements of our rule 24, subd. 2 (b), and upon a search of the record, with such assistance as counsel has given us, we find no plain error. The evidence, to the admission of which exceptions were taken, within the scope of the assignments of error, was substantially material in one aspect or another of the ease. The point that plaintiff sues upon a split cause of action, part of which was litigated in a former suit, necessarily involves a consideration of the evidence, and is therefore concluded by the general finding. Soeiété Nouvelle, etc., v. Barnaby (C. C. A.) 246 F. 68, 73.

Judgment affirmed.

Reid v. Baker, 17 F.2d 770, 1927 U.S. App. LEXIS 3045 (9th Cir. 1927).

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