United States v. First Nat. Bank of Bellaire

86 F. 861, 40 W.L.B. 182, 1898 U.S. App. LEXIS 2996

• Court: U.S. Circuit Court for the District of Southern Ohio
• Decided: March 7, 1898
• Status: Published

Opinion

SAGE, District Judge.

This case was tried at tbe June term, 189(3. Tbe jury returned a verdict for the plaintiff. The plaintiff moved for a judgment non obstante veredicto, and for a new trial. At the same term the time for preparing a bill of exceptions was extended until and through the month of December, 1896. On the 18th of December of that year the court ordered judgment for the plaintiff non obstante veredicto, and on the 22d of December judgment for the plaintiff was entered accordingly. On the 11th of March, 1897, the defendant moved the court to set aside the judgment and grant a new trial, on the ground of surprise; the defendant claiming to have been taken by surprise by the testimony ■of Albert W. Eoome. Other grounds were newly-discovered evidence, that the judgment was not sustained by sufficient evidence, was contrary to law, error in the assessment of the amount of recovery, and other reasons. All the reasons, excepting surprise and the allowance of interest from April 1, 1891, were fully discussed upon the hearing of the motion for judgment, and will not now be reconsidered. The interest was rightly allowed from the date of demand upon the defendant for payment. At the trial of the case there was no claim of surprise at the testimony of Eoome, and no continuance was asked. On the argument of the motion for judgment non obstante veredicto, defendant made no claim of surprise. That claim was not made until nearly three months after the judgment had been entered. In support of it the affidavit of the paying teller of the bank is filed, denying the testimony of Eoome, which was that about the 23d or 24th of October, Í889, he showed to Eandolph the forged draft, and notified him that the woman to whom the draft was payable, and whose indorsement was forged, had died in 1883; also, the affidavit of A. P. Tallman that at the time of the trial, and after Eoome’s testimony had been given, it was impossible to procure Eandolph’s evidence, as he was then living in the state of Illinois. But it appears from the evidence of Eoome that, when he went to the bank for the express purpose of notifying the bank of the forgery, Caroline Hinkey, who had the draft cashed, and was presumably guilty of forgery of the indorsement, had been taken to West Virginia in order to evade the authorities. It appears from the transcript of the evidence in the case of U. S. v. American Exch. Nat. Bank, 70 Fed. 232, to recover the amount of this draft, that the deposition of H. E. Ean-dolph, taken April 4, 1892, was read in evidence. In that deposition he testified that the first he knew of Caroline Hinkey’s right to receive the money on the draft being questioned “was the time that Capt. Little took her over into West Virginia in order to evade the authorities. This was after she had drawn the balance on the certificate of deposit; it was quite a little while afterwards.” This testimony agrees exactly with Eoome’s as to the time; that is to say, that it was while Caroline Hinkey was in West Virginia to evade the authorities. He further testified that he could not remember definitely, with reference to the time of the payment of the money, when it was that he heard that Caroline Hinkey had committed forgery in indorsing the draft. He said that “it might have been three months, and it might have been but one month.” The check was cashed August 2, 1889, and Eoome gave the notice to the bank in the latter part of October, 1889. It further appears, from the record of evidence given in New York, that at that time the officers of the Bellaire Bank did not pretend that they did not have notice of tbe fact that tbe indorsement of the draft was forged. Eoome was a witness in that case, and testified at the trial as tp the notice given to the Bellaire Bank, just as he did at the trial of this case. If a new trial were granted now, and Randolph were to swear according to the statements of his affidavit, he would be contradicted by his own deposition, taken f^pril 4, 1892. There is, therefore, no sufficient ground for the motion to set aside the judgment, which is overruled.

I am appealed to to make an order to enable the defendant to procure a bill of exceptions that will be recognized as valid by the court of appeals, and that, if necessary, I make an entry nunc pro tunc. There is nothing in this case which would authorize the court to make an entry nunc pro tunc, and I am unable to see that there is any other entry that can be made that will enable the defendant to take a bill of exceptions. The time for taking such a bill expired, by limitation of the express order made, on the last day of December, 1896. The order might then have been made extending the time through and until the end of that term, but I know of no practice allowing a bill of exceptions after the expiration of the term succeeding the trial term. I have, on one or two occasions, where there was special reason therefor, on the application of counsel, set aside the judgment, — riot, however, in cases where there has been trial by a jury, — and re-entered it early in the following term, so as to enlarge the time for taking an appeal. But the time for taking a writ of error in this case has long since expired, and I know of no means whereby the defendant can now obtain a valid bill of exceptions.