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(Circuit Court of Appeals, Eighth Circuit. June 23, 1906.)

No. 2,293.

1. COURTS-RULES-DISCRETION IN ENFORCEMENT,

Parties to an action cannot, without the consent of the court, stipulate for the abrogation of rules which are formulated for its own benefit and are designed to facilitate the proper discharge of its own duties; when rules of such a character are disregarded, it is discretionary with the court whether it will enforce the prescribed penalty, and, in the absence of gross abuse of such discretion, its order in the premises will be respected on appeal or writ of error.

[Ed. Note.--For cases in point, see vol. 13, Cent. Dig. Courts, $$ 294,

295; vol. 44, Cent. Dig. Stipulations, $ 2.]
2. APPEAL-DISMISSAL-FAILURE TO FILE BRIEFS.

The dismissal of an appeal on the ground that the appellant did not file its brief until nearly three years after the time fixed therefor by the standing rule of the court and by its order made in the cause was within the discretion of the court, and the case was not altered by the fact that the delay was authorized by a stipulation of the parties made without the court's consent nor because a brief was filed a short time before the dismissal.

[Ed. Note.For cases in point, see vol. 3, Cent. Dig. 88 3129, 3104– 3108; vol. 44, Cent. Dig. Stipulations, $ 2.]

In Error to the United States Court of Appeals in the Indian Territory.

For opinion below, see 88 S. W. 308.

From a judgment by Kidd against the railway company in a trial court the latter appealed to the United States Court of Appeals in the Indian Territory. The record on appeal was filed May 15, 1901. The rules of that court require the filing of briefs within short periods of time near to the day of submission and provide that in case of default the cause shall be dismissed when it is reached upon the regular call of the docket. On October 1, 1901, counsel stipulated that appellant's brief should be filed November 1, 1901, that of appellee within 30 days thereafter, and the reply brief of appellant within 15 days after the brief of appellee was filed. On October 5, 1901, the cause was reached in the appellate court, and was submitted upon oral argument for the railway company. The court ordered that the briefs be filed within the times specified in the stipulation. Thereafter counsel agreed among themselves for an indefinite postponement of the time for filing briefs but the consent of the court thereto was never obtained. Nearly three years afterwards, September 29, 1904, the appellant railway company filed its brief, but on the 19th of the following month the appeal was dismissed for failure to comply with the rules of the court (88 S. W. 308). In a brief opinion the court recited that no briefs had been filed by either party, evidently overlooking the belated brief of appellant. In a petition for rehearing this fact was presented to the court, and it was also asserted that the agreement of counsel for the indefinite postponement of the time for filing briefs was with the concurrence of the judge to whom the cause had been assigned for opinion. This assent of the judge was implied from the fact that he indorsed an order upon the petition for a rehearing which resulted in its filing with the clerk and its presentation to the full bench. Notwithstanding this, the petition for rehearing was denied by the court. To review the action of that court this writ of error was prosecuted. The railway company also seeks a review of alleged errors in the trial court in which the original judgment was obtained.

Clifford L. Jackson, for plaintiff in error.
William T. Hutchings, for defendant in error.
Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK, Circuit Judge, after stating the case as above, delivered the opinion of the court.

Parties to an action may by stipulation waive rights that are personal to them, but they cannot without the consent of the court stipulate for the abrogation of those rules that are formulated for its own benefit and are designed to facilitate the proper discharge of its own duties. When rules of the latter character are disregarded it is discretionary with the court whether it will enforce the prescribed penalty and in the absence of a gross abuse of such discretion an order of the court in the premises will be respected on appeal or writ of error.

The rule of the Court of Appeals in the Indian Territory requiring the filing of briefs within stated times is a reasonable one. It is designed to assist that court in its labors and to facilitate the dispatch of its business; and so of the special order of that court relaxing the rule in this case in definite and specified particulars. Manifestly, if counsel without the consent of the court could dispense with compliance with such rules and orders the speedy and orderly dispatch of its labors might be seriously interfered with. The fact that courts generally observe the convenience and desires of counsel as expressed in their stipulations gives rise sometimes to the impression that conformity with the rules of procedure is solely a matter for the determination of the parties litigant. This may be so in some cases but certainly not in all. There is a well-defined line of distinction between those rules that are for the benefit of the court and to aid it in the discharge of its duties and those that are for the benefit of parties litigant. Reynolds v. Lawrence, 15 Cal. 360; Spangler v. San Francisco, 84 Cal. 12, 23 Pac. 1091, 18 Am. St. Rep. 158; Manns, etc., Co. v. Templeton, 149 Ind. 1706, 44 N. E. 1108; Lehigh, etc., Co. v. Scallen, 61 Minn. 63, 67, 63 N. W. 245; Gittings v. Baker, 2 Ohio St. 21, 23; Hughes v. Kelly, 2 Va. Dec. 588, 30 S. E. 387; Falkenberg v. Gorman, 71 Wis. 8, 36 N. W. 599 ; Moulder v. Kempff, 115 Ind. 459, 17 N. E. 906; Spencer v. McMaster, 3 Wyo. 105, 3 Pac. 798.

The railway company did not file its brief until nearly three years had elapsed after the time fixed therefor by the standing rule and the order of the court. We cannot say, therefore, that in dismissing the appeal the court was not exercising a sound discretion. That a brief was filed shortly before the dismissal cannot alter the case. It is claimed that the delay was with the assent of one of the judges of the court. Assuming this to be true, though it is based on implication, the necessary answer is that it was the court of several members that made the rule and the order and it was the court that enforced them as it was its province to do. These conclusions prevent the consideration of the questions relating to the merits of the case.

The order of dismissal is affirmed.

PHOENIX ASSUR. CO., Limited, of London, V. MARYLAND GOLD MIN

ING & DEVELOPMENT CO., Limited.

(Circuit Court of Appeals, Ninth Circuit. June 18, 1906.)

No. 1,244.

1. TRIAL-PLEADING-VERDICT.

Where a policy declared that in the event of loss the insurer should only be liable for three-fourths of the actual cash value of the property insured at the time of the loss, and in an action on the policy the complaint alleged that after the loss it was adjusted and fixed at the sum of $10,335.75, a verdict assessing plaintiff's damages at $10,000, with interest, was erroneous, as not responsive to the issues.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, $$ 774-776.] 2. WRIT OF ERROR—DISPOSITION OF CAUSE-MODIFICATION OF JUDGMENT.

Where a judgment sought to be reviewed on writ of error had for its sole support a verdict which was not only beyond the issues, but in direct conflict with the complaint, the court could not remit the excess of the verdict, so as to reduce the judgment to the amount plaintiff was entitled to recover and affirm the same.

[Ed. Note.-For cases in point, see vol. 3, Cent, Dig. Appeal and Error $$ 4498_4505.]

In Error to the Circuit Court of the United States for the Central Division of the District of Idaho.

George G. Pickett and Goodfellow & Fells, for plaintiff in error. N. M. Ruick, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS, Circuit Judge. The policy of insurance upon which this action is based and which is set out in the complaint of the defendant in error, who was the plaintiff in the court below, covered $4,000 on certain quartz mill buildings described in the policy, $3,000 on its boiler and engine, and $3,000 on the fixed and movable machinery contained in the buildings—$10,000 in all. The policy contained, among others, this provision:

"It is understood that in the event of loss or damage under this policy this company shall not be liable for more than three-fourths the actual cash value of the property hereby insured, as of the time immediately preceding such loss, and in the event of other insurance permitted thereon then liable for its proportion only of three-fourths of such value.”

The policy also provided that, in the event of loss or damage, the same should be ascertained or estimated by the insured and the insurance company, and in the event that they should differ then by appraisers to be appointed in a prescribed way, and further provided that, the amount of loss or damage having been thus determined, the sum for which the insurance company is liable pursuant to the policy shall be paid at a certain time after due notice, etc.

The trial in the court below, which was with a jury, resulted in this verdict:

“We, the jury in the above-entitled cause, find for the plaintiff and assess the damages at the sum of $10,000, interest from the 1st of May, 1904, at 7 per cent. per annum.”

Based upon such verdict the court entered judgment in favor of the plaintiff and against the defendant insurance company for $10,617.20, with legal interest thereon from the date of the judgment, and costs of suit. The case is brought here by writ of error, the sufficiency of most of the assignments of error on which are questioned by the defendant in error. These we do not think it necessary to consider, for the reason that the unquestioned assignment that the verdict and judgment are contrary to law raises the point of the sufficiency of the complaint to sustain the judgment, even if any assignment in respect to that matter be necessary; but, as said by Chief Justice Marshall in Slacum v. Pomery, 6 Cranch, 221, 3 L. Ed. 204:

"It is not too late to allege as error in this court a fault in the declaration which ought to have prevented the rendition of a judgment of the court below."

The complaint itself, after pleading the policy and the destruction of the insured property by fire, alleges that:

"On and between the 26th day of August, A. D. 1903, and the 31st day of August, A. D. 1903, at the county of Blaine, state of Idaho, the plaintiff furnished the defendant with due and full proof of its said loss and interest, and otherwise performed all of the conditions of said policy of insurance on its part; and at said time and place, after a full and complete examination of all matters and things in, about, and concerning said property, and its destruction and value, it was stipulated and agreed in writing by and between the parties herein, to wit, Maryland Gold Mining & Development Company, Limited, and the Phoenix Assurance Company, Limited, of London, that the loss and damage to the property described in said policy No. 5,912,347 was $10,335.75, and the same was fixed, adjusted, and agreed to by said parties at said time and place in writing."

This stipulation so pleaded, and afterwards introduced in evidence according to the bill of exceptions, fixed the actual cash value of the property at the time of the loss, the aggregate insurance upon which was, according to the policy, $10,000 for three-fourths of which only was the insurer liable according to its express provision. The verdict and judgment were, therefore, in excess of what they could iegally be under the averments of the complaint itself; for they not only went beyond the issues in the case, but are in direct conflict with the express averments of the complaint itself.

The suggestion on the part of the defendant in error that this court may remit the excess and affirm the judgment for three-fourths of the ascertained loss, cannot be sustained, for the reason that the judgment brought up for review has for its sole support the verdict of the jury, which verdict, as has been said, is not only beyond the issues, but is in direct conflict with the express averments of the plaintiff's complaint. It is apparent that the rule under which courts at times grant a new trial unless the plaintiff consents to a remission of a part of a verdict which is within the issues is not authority for this court to change the verdict which is the sole basis of the judgment in question.

It results that the judgment must be, and is, reversed, and the cause remanded to the court below for a new trial.

PRICE et al. v. CONNORS.

.

(Circuit Court of Appeals, Ninth Circuit. June 18, 1906.)

No. 1,215.

RELEASE-RESCISSION-TENDER OF CONSIDERATION.

Where, in an action for injuries to plaintiff by a gunshot wound, defendants put in issue all the allegations of the complaint, pleaded a release executed by plaintiff in consideration of a payment of $500, which plaintiff sought to avoid on the ground that it was executed while he was intoxicated and the jury might have found that the whole of the damages suffered by plaintiff did not in fact amount to $500, plaintiff was required to have repaid or tendered the money received by him as a condition of his right to avoid the release.

In Error to the District Court of the United States for the Second Division of the District of Alaska.

Ira D. Orton, Albert Fink, W. H. Metson, J. C. Campbell, and F. C. Drew, for plaintiffs in error.

L. H. Brewer, F. L. Morgan, Ben Sheeks, Geo. D. Schofield, and Albert H. Elliot, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS, Circuit Judge. This case is brought here by writ of error to the United States District Court for the District of Alaska, Second Division. The action was for damages for personal injuries sustained as the result of a gunshot wound, and resulted in a verdict and judgment for the plaintiff.

The defendants to the action, after putting in issue the allegations of the complaint, set up as an affirmative defense in their answer that the plaintiff, for and in consideration of the sum of $500 paid to him by them, had released and discharged them from all liability for the alleged cause of action. The plaintiff replied to that affirmative defense, and in his reply alleged that if such release, discharge, and satisfaction was in existence, the instrument was obtained by the defendants collusively acting together for the purpose of cheating and defrauding the plaintiff out of his rights, and by then and there taking advantage of the plaintiff while he was intoxicated to such an extent as to be wholly unfit for the transaction of any business. On the trial the defendants introduced in evidence a written release executed and acknowledged by the plaintiff, to the effect stated in their answer. The plaintiff denied all knowledge of the execution of the release. In respect to the question whether or not the plaintiff was intoxicated at the time of the execution of the release, the evidence was conflicting, but he himself testified on the trial that Hoxsie, who represented the defendant in the negoti

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