School District No. 1, City of Plattsmouth, Nebraska v. Pomerene

Eighth Circuit

School District No. 1, City of Plattsmouth, Nebraska v. Pomerene

5 F.2d 1021, 1925 U.S. App. LEXIS 2858

Court of Appeals for the Eighth Circuit·Decided April 13, 1925·No. No. 6699·Published

Opinion

STONE, Circuit Judge.

This is an action by a contractor against a school district for money due for installation of a heating plant. The facts are fully stated in the opinion of Judge Lewis upon the previous writ of error to this court. 288 F. 145. The trial court directed a verdict for the contractor, on the ground that the issues and evidence at the second trial were substantially those at the former trial and that the case was ruled by the opinion of Judge Lewis. From a judgment on this verdict, the District sues this writ of error. After remand on the previous writ of error, defendant endeavored to amend its answer to avoid the effect of the above opinion, and determination. Counsel urge strenuously that they have been successful in this attempt, and that the retrial was upon different issues and evidence than upon the first trial, and that they are now without the influence of the prior view and action of this court. We have carefully examined the entire record bearing upon the matter, and are unable to approve this position. There is no substantial difference in the present issues and [1022]*1022evidence and those upon the former trial and writ of error. The reasoning and rule of the opinion of Judge Lewis on the previous writ of error are fully approved and govern the present case. Objection is made, also, to certain rulings excluding evidence offered by the district. The assignment of errors does not properly indicate or identify the evidence thus ruled on, and therefore cannot be examined by us. Rule 11, this court. The judgment is affirmed. •

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STONE, Circuit Judge.

This is an action by a contractor against a school district for money due for installation of a heating plant. The facts are fully stated in the opinion of Judge Lewis upon the previous writ of error to this court. 288 F. 145. The trial court directed a verdict for the contractor, on the ground that the issues and evidence at the second trial were substantially those at the former trial and that the case was ruled by the opinion of Judge Lewis. From a judgment on this verdict, the District sues this writ of error. After remand on the previous writ of error, defendant endeavored to amend its answer to avoid the effect of the above opinion, and determination. Counsel urge strenuously that they have been successful in this attempt, and that the retrial was upon different issues and evidence than upon the first trial, and that they are now without the influence of the prior view and action of this court. We have carefully examined the entire record bearing upon the matter, and are unable to approve this position. There is no substantial difference in the present issues and [1022]*1022evidence and those upon the former trial and writ of error. The reasoning and rule of the opinion of Judge Lewis on the previous writ of error are fully approved and govern the present case. Objection is made, also, to certain rulings excluding evidence offered by the district. The assignment of errors does not properly indicate or identify the evidence thus ruled on, and therefore cannot be examined by us. Rule 11, this court. The judgment is affirmed. •

School District No. 1, City of Plattsmouth, Nebraska v. Pomerene, 5 F.2d 1021, 1925 U.S. App. LEXIS 2858 (8th Cir. 1925).

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Opinion

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