UNITED STATES AT THE RELATION OF KINNEY
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY

U.S. | 1911-12-18
No. 664
222 U.S. 283 Supreme Court of the United States (1911) Caution
Also reported at: 56 L. Ed. 200 · 32 S. Ct. 101 · 1911 U.S. LEXIS 1785 · SCDB 1911-021
Cited by 24 cases

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Synopsis

A surety company was sued to recover on a bond posted by a Clerk of a Circuit Court, and the trial court directed a verdict for the defendant, which the appellate court affirmed. The Supreme Court upheld the affirmance, finding that the plaintiff's objection to the trial court's refusal to decide a motion for judgment based on insufficient defense was not prejudiced by the postponement of that ruling to trial, and that the plaintiff's exceptions to jury instructions could not be reviewed because they were not properly submitted as a bill of exceptions and lacked the necessary evidentiary record.

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Opinion of the Court
By Mr. Chief Justice White.

Memorandum opinion by direction of the court.

By Mr. Chief Justice White.

The trial court instructed a verdict for the defendant, and the court below affirmed its action. The suit was to recover upon the bond of a Clerk of a Circuit Court. 186 Fed. Rep. 477. We think a motion to affirm must prevail.

All the errors relied upon complain of a refusal to grant a motion of the plaintiff for judgment because of the insufficiency of “an affidavit of defense” and of various rulings made at the trial. Although the motion for judgment was denied, its merits were not passed upon, since the effect of the ruling was simply to postpone consideration of the subject until the trial, and therefore the exception which was formally allowed was simply “to the refusal by the court to decide the issue of law raised by plaintiff’s motion for judgment,” etc. But afterwards the defendant filed formal pleas to the statement of plaintiff’s claim and joined issue thereon. As the ruling left it open to raise the question presented by the motion, it follows that the mere order of postponement did not prejudice and cannot possibly constitute reversible error. As to the contentions which relate to occurrences at the trial, they cannot be considered, as the record contains no bill of exceptions. The paper in the record styled “Exceptions to the charge to jury,” initialed “ J. B. McP., trial judge,” and signed by the plaintiff, is not a bill of exceptions (Origet v. United States, 125 U. S. 240, 243), but if it were to be treated as a bill of exceptions, as all the matters therein referred to depend for their solution upon an examination of the evidence which is not in the record, it follows that we have no means of determining whether reversible error arose from an action of the court on any of the subjects to which the paper refers. This being the case, it becomes our duty to affirm.

Affirmed.

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Citator

Cited By

  • Kinney v. Plymouth Rock Squab Co., 236 U.S. 43 (U.S. 1915)
    …uested was rightful and therefore no cause of action in favor of- Kinney arose therefrom. (186 Fed. Rep. 477.) And in this court to which the casé was brought on error, the judgment of the Court of Appeals was on motion affirmed, December 18, 1911. (222 U. S. 283.) On February 15 following, in the attachment Suit in the District Court of Massachusetts, Kinney asked that the default as originally asked by him be entered nunc pro tunc. The motion was set down for hearing for a day in March, and, the petitioner…
  • Krauss Bros. Lumber Co. v. Mellon, 276 U.S. 386 (U.S. 1928)
    …al a bill of exceptions. Herbert v. Butler, 97 U. S. 319, 320; Maloney v. Adsit, 175 U. S. 281, 285, but the signature is still necessary. Origet v. United States, 125 U. S. 240; United States ex rel. Kinney v. United States Fidelity & Guaranty Co., 222 U. S. 283. Strict requirements are thus insisted on so as to make certain that the reviewing court shall have before it an accurate account of the evidence or exhibits, which were before the trial court in the original hearing of the issues of the case, prop…
  • Jones Nat'l Bank v. Yates, 240 U.S. 541 (U.S. 1916)

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