EX PARTE CENTURY INDEMNITY CO.
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The Supreme Court vacated its earlier reversal and upheld the Circuit Court of Appeals' refusal to consider a defendant's assignments of error challenging rejected proposed findings of fact, because the defendant's proposed findings were not properly included in the bill of exceptions as required by federal statute. The Court held that proposed findings must be authenticated through inclusion in the bill of exceptions to be properly preserved for appellate review.
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Per Curiam.
On an appeal from a judgment for the plaintiff in an action at law, in which a jury was waived, the Circuit Court of Appeals refused to consider certain assignments of error upon the ground that they related to findings requested by the defendant after the trial had been concluded. The judgment was affirmed, 90 F. 2d 644, and certiorari was granted. We were unable to accept the conclusion of the Circuit Court of Appeals that when the trial court ordered “that judgment be entered for plaintiff, with interest and costs, upon findings of fact and conclusions of law to be presented,” it was thereafter “too late adequately to present special findings of fact.” It was not necessary to treat the first order for judgment as ending “the progress of the trial.” 28 U. S. C. 875. The qualifying words in the order were appropriate to suggest a “reservation of opportunity for further action.” Accordingly, the judgment of the Circuit Court of Appeals was reversed and the cause was remanded to that court for further proceedings in conformity with the opinion of this Court. Century Indemnity Co. v. Nelson, 303 U. S. 213.
On the later hearing, the Circuit Court of Appeals found another ground for its action, — a ground not dealt with in its former ruling and not presented by the petition for certiorari. That was that defendant’s proposed findings were “not incorporated in the bill of exceptions, either directly or by reference.” The Circuit Court of Appeals refused to consider the assignments of error addressed to the rejection of these findings and again affirmed the judgment. 96 F. 2d 679.
On application of the defendant, this Court issued a rule directing the judges of the Circuit Court of Appeals to show cause why the judgment should not be vacated and the court be required to consider the assignments of error. The judges have made return to the rule.
While it appears from the bill of exceptions that the defendant “served and lodged its proposed findings of fact and conclusions of law,” and the transcript contains a paper described as defendant’s proposed findings of fact and conclusions of law, that paper is not included in the bill of exceptions and hence is not properly authenticated. 28 U. S. C. 875. Insurance Company v. Folsom, 18 Wall. 237, 249; McLeod v. United States, 67 F. 2d 740.
In view of that defect, we cannot direct the Circuit Court of Appeals to consider the assignments of error and the rule to show cause must be discharged.
Rule discharged„
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Sprague v. Ticonic Nat'l Bank, 307 U.S. 161 (U.S. 1939)…tion and therefore foreclosed by the mandate. .While a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues. See In re Sanford Fork & Tool Co., 160 U. S. 247; Ex parte Century Indemnity Co., 305 U. S. 354. Certainly the claim for “as between solicitor and client” costs was not directly in issue in the original proceedings by Sprague. It was neither before the Circuit Court of Appeals nor before this Court; Its disposition, therefore, by the mandate o…
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Thornton v. Carter, 109 F.2d 316 (8th Cir. 1940)…ber Cloth Co. v. J. A. Livingston, Inc., 3 Cir., 92 F. 2d 290, 291; Goldwyn Pictures Corp. v. Howells Sales Co., Inc., 2 Cir., 287 F. 100, 102. In re Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414; Ex parte Century Indemnity Co., 305 U. S. 354, 59 S.Ct. 239, 83 L.Ed. 216; Sprague v. Ticonic National Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184. See and compare, McWilliams v. Blackard, 8 Cir., 96 F. 2d 43, 45; Guettel v. United States, 8 Cir., 95 F. 2d 229; Mortgage Loan Co. v. Li…
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Union Pac. R.R. Co. v. LaVerl Johnson and Joleen Johnson, 249 F.2d 674 (9th Cir. 1957)…, however, except for our holding of no duty of a supplier of electricity to require modernization of equipment to include latest safety devices, the case is now before us in the same posture it originally came to us. Ex parte Century Indemnity Co., 305 U.S. 354, 59 S.Ct. 239, 83 L.Ed. 216; Sprague v. Ticonic Bank, 307 U.S. 161, at page 168, 59 S.Ct. 777, 83 L.Ed. 1184. But we are not done with the City of Idaho Falls case. Paradoxically, Union Pacific, also a defendant in that case, escaped as a construct…
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- Ins. Co. v. Folsom, 18 Wall. 237 (U.S. 1873)
- Century Indem. Co. v. Nelson, 303 U.S. 213 (U.S. 1938)
- Century Indem. Co. v. Nelson, 90 F.2d 644 (9th Cir. 1936)
- McLEOD v. United States, 67 F.2d 740 (10th Cir. 1933)
- Century Indem. Co. v. Nelson, 96 F.2d 679 (9th Cir. 1938)