'h'(otreuU Own o/:'&PP6az,! Eighth Circuit. Hay 10. I . )
JVherethecharge to the jury contains a series of proposition.,. single exeeptloll thereto,til gross cannot be sustained If any proposition is sound, and the appellate will not;. on such an. exception, tilquue whether any part of the charge .. erroneous. ",An,.aB81gnment of error in 'giving instJ'U(ltionl will not be ooD8idered where it. fail,.Wcomply with Cir.Ct. App. Rule 24, 47 Fed. Rep. xi., prescribing that, "when ,t,he e)'l'Ql' i. to the' oharge of the court, tbe specification sballset out the part,referred w tnCotidem llerbtl, whether it be tilinstructionl given or in instruotione refulled. " ' Wbere one of a series of prepositions preferred as one request to charge ts un, .oun4,ao; exception to a refusal to oharge the whole series Qallnot be sustained. a thtrdperson title to chattels seized under exeout!!lu, a bill of sale exeduted by defendant to a 8trangerafter tbe alleged sale to the'Cll&imanUI admla.. ible as bearing on the bona fides 01 the sjUe to tbe claimant.
J'qR NEW TRIAL.
... ll::UOl]'l.\I0:li,.-CL.\Il\lS BY THIRD
G. ,ApPBAY-"SSIGNMENT 01!'
Blbce a motion for a neW trial is, under the federal practice, addressed to the di.. of the trial court, and no error "an. be. assigned to the ruling thereon, such motion wiU not be considered in aid ot an insuftlcient assignment of errors.
8. CIR'CUI'l' 'COURT 01' ApPB.u.s.:-:FoLLOWING STATB PRACTICB.
Though thepraetice acto' Arkansas, regulating the practice of state oourts of original jurisdictioll,la obligatory on tlle federal courts beld III that state alld in . the Indian Territory, the rules ofrractice of the supreme court of that; state are .; not piq.optedoy the circuit oourt 0 appeals bl oases oomingfrom e!t;her the state 01' the.
In Error to the United States Court in the IlldianTerritory. This was an issue as t6,the right to property levied on by Henry C. Pyeatt JUld James C. Kirby ullder an execution against William P. MOo Clellan, and claimed by Oharles M. McClellan. The issue was found for plaintifis, and judgment rimdflred against Charles McClellan and D. W. Lipe,. the surety on bis bond, and they bring error. Affirmed. ]'or decision on motion to dismiss the writ of error and vacate the aupt:r8edeas,see 49 Fed. GeCirge E. NeJ,8dn and Wm. M. OraveTl8, for plaintiffs in error. i·John H. Roger8, for deftlndants inarror. ,Before CALDWELL and SANBORN, Circuit Judges, and SumAS, District . CALDWELL, Circuit The, defendants in error on the 3d day of October, 1889, recovered a judgment in the United States court for the Indian Territory against William P. McClellan for the 'sum' of $7,598.07. upon which execution was issued on the next day, and was levied by the marshal on the 5th day of October on certain cattle and horses, as the property of the defendant in the execution. The property so levied upon was claimed by Charles M. McClellan, who executed a bond conditioned as required by section 3042, Mansf. Dig. Ark.;with the defendant Lipe as his surety. Thereupon the plaintiff gave notice, as provided by section 3045 of the same digest, and the trial of the right to
J['CI,ELLAN ,. PYEATT.
property,levied ()n by, the marshal; and claimed by the plaintiff in error McClellan, proceeded in the mode provided by statute, (sections 3042-3047, Mansf. Dig. Ark.) The case was tried by a jury, who found the. issues for the plaintiffs in the execution, and assessed their damages at $930 and interest, for which ..sum judgIi1ent was rendered against theelaimant. Charles M. McClellan, and Lipe, as surety on the theI;eupon sued out this writ of error. It is said.in the brief of counsel for plaintiffs in error that "there was no sufficien,t recital in the bond of an appraisement. The names of the appraisers d9not appear in it. Each article is not appraised, n(lr does it appear how or by whom the appraisers were sworn." But this was not assigned for error below, and the bond was introduced in evidence without objection, and appears to be in proper form. The first eight assignments of error relied on in the brief of counsel for the plaintiffs in error relate to instructions given and refused by the court. The court charg.ed the jury at considerable length. The instractions deal with the various l\spects ofthecase, and embrace 11 different points or propositions. The plaintiffs in error excepted to the whole charges in mass, The greater part, if not the whole, of the charge, was good Whether any part of it is erroneous we will not inquire, because thernle is well setHea that "if the entire charge of the court is excepted to, 01' a series of propositions contained in it is excepted to in gross, and any portion thu.s excepted to is sound, the exception cannot be sustained." Beaver v. Tilylor, 93 U. S. 46; Lincoln v. Claflin,7 Wall. 132; Cooper v. Schlesinger, 111 U. S. 148, 4 Sup. Ct. Rep. 360; Burton v. Ferry CO., 114 U. S. 474,5 Sup. Ct. Rep. 960. The court would be justified in disregardinp; this aesignment of errors for another reason. The twenty-rollrth rule of this court requires the brief of the plaintiff in error to coritain a specification of the errors relied on, and, "when the error alleged is to the charge of the court, the specification shall set out the partrefened to totideln 11erbis, whether it be in instructions given or in instructions refused." , This requirllment has not. been observed by the plaintiff in error in this case. Where the record discloses" a plain eI:1'or, nO,t assigned or specified." we would not be inclined to rigidly enforce rule,but there is nothing persuasive in this record to induce us to waIve it. What has been said with regard to the exception to the charge given by the court is equally applicable to the exception to the refusal of the court to give the instructions asked by the plaintiffs in error. These comprise a series of six propositions. preferred as one request, "and," the record recites, "the court refusing to give said instructions," the defendant excepted. The sixth proposition of the series was misleading, and not warranted by the pleadings or the facts. Its purpose was to induce the jury to believe that the officer's return that he had levied on the property, and the distinct recital to that effect in the bond executed by the plaintiffs in error. were not sufficient evidence of that fact. This request was properly refused, and, where one of a series of propositiolls preferred as one request is unsound, an exception to a refusal to charge be maintained. See authorities cited
The conrt permitted the marshal to amend the return on the execution. The ninth error to which our attention is called in the brief for the plaintiffs in error is' that "the Hedge and Alton bills of sale were irrelevant."These bills of sale were introduced to show that the property which Q. W. McClellan claimed to have purchased from W. P. McClel Ian was treated by both of them, after the alleged sale from W. P. McClellanto'C. W. McClellan, as the property of the former, and sold and used. for his benefit.. These were circumstances bearing on the bona fidea of the alleged sale of the property by W. P. McClellan to C. W. McOlelInn, and wete properly admitted in evidence. The suggestionis made that there was a motion for a new trial, and that that motion specifies particularly the paragraphs of the court's charge to ,the jury intended' to be excepted to, and that, as there was an e:tcepmon to the overruHng of the motion for a new trial, all errors properlyset out in the motion are sufficiently saved. This is a misconception;ofthe office and effect of a motion for a new trial in the courts of the United States. In these courts the motion for a new trial is designed ito invoke the judgment of the trial court on the alleged errors set outinthemotion,;but the ruling of the trial court on the motion cannot be assigned for error;aod neither this court nor the supreme court of tlie United States will treat the motion for a new trial as a sufficient bill of exceptions or assignment orartors. Its office and functions are limited'to the trial court. It has long been settled that a motion for a new trial in a federal court is addresser! to the sound discretion of the court, ancHhat the ruling thereon one way or the other cannot be assigned for error. Doiwellv. De La Lanza, 20 How. 29; Mulhall v. Keenan, 18 Wall. 342; Railway 00. v. TwrYmhly, 100 U. S. 78; Railway Co. v. Heck, 102 U. S. 120; The act of congress (26 St. pp. 81, 94, c. 182', § 31) put in force in the Indian Territory the'practice act of the state of Arkansas, regulating thapractice in courts of original jurisdiction. The same practice act, 80 far as relates to actions at law, is, by act of congress, obligatory on the courts oithe United States held within the state of Arkansas, but the rules ofpractice that prevail in the supreme court of Arkansas are not adopted for this court, nor the supreme court of the United States, in casescomirig either from the Indian Territory or from the circuit court of the United States in that state. For more than 40 years it has been the settled rule of practice of the supreme court of Arkansas that a motion for a new trial to correct all the errors of thee trial court, not apparent upon the faceofthe record, is essential before a writ of error will be entertained by the supreme court. Danley v. Robbins' Heirs. 3 Ark. 144, decided in 1840; Steck v. Mahar, 26 Ark. 536; Mills v. Reed, 27 Ark. In the courts olthe United States the errors not apparent upon the face onherecord are brought onto the record by bill of exceptions, and the bill ofexceptions' and assignment of errors are the foundation of the case of the plaintiff in error in the appellate court; and in that court neither the motion for a new trial-nor the ruling of the trial court upon
it can have any influence in the decision of the cause, or perform &be .office of a bill of exceptions or an assignment of error. Judgment affirmed.
May 16, 18lII.)
(C,,"cuU Court qf Appeals, E'41hth Circuit.
I.A.PPBALABLB OMBHs-NBW TRiALS.
A ruling either way on a nJotion for new trial cannot be 88signed for enur. McCleU,an v. Pyeatt, 50 Fed. Rep. 686, followed.
The suftlciency of the evidence to support the verdict cannot be considered b1 the reviewing court where the complaining party not only ne¥lected to ask a pel'emptory instruction for a verdict at the close of the whole eVIdence, but, without objection, permitted the court to charge the jury, upon the assumption that the case was one proper to be thus submitted. RaHroad Co. v. H,awthorTUJ,12 Sup. et. Rep. 591, 144 U. S. 202, and I1l8Urance Co. v. Unsell, 19 Bup. Ct. Rep. 671, 144 U. S. 489, followed.
In Error to the Circuit Court of the United States, Northem District err Minnesota. Action by Charles Stabler against the village of Alexandria, Doug·· las county, Minn., for personal injuries. Verdict and judgment fOJ: plaintiff. Defendant brings error. Affirmed. Charle8 C. Willson and H. Jenkins, for plaintiff in error. George H. Reynolds, for defendant in error. Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District Judge. CALDWELL, Circuit Judge. This action was brought against the village of Alexandria, Minn., to recover damages for a personal injury received by the plaintiff from falling in the nighttime on a slippery sidewalk, upon which it was alleged the defendant had negligently permitted snow and ice to accumulate. There was a jury trial and a verdict and judgment for the plaintiff, and the defendant sued out this writ of error. No exceptions were taken to the ruling of the court in the course of the trial, or to the instructions to the jury. The defendant moved the court to set aside the verdict and grant a new trial, upon the ground, among others, that the evidence was not sufficient to sustain the verdict, which motion was overruled, to which ruling the defendant excepted. The counsel for the plaintiff in error states in his brief that "the sole error relied upon is that the evidence is not sufficient to sustain the verdiet." If the defendant below desired to test, on writ of error in this court, the sufficiency of the evidence to sustain the verdict, it should have asked at the close of the whole evidence a peremptory instruction for a verdict in its behalf. Railroad Co. v. Hawthorne, 144 U. S. 202, 12 Sup. Ct. Rep. 591. It did not do this, but without objection permitted the court to charge the jury, upon the assumption that the case, upon the evidence, was on.El proper to be .8ubmitted to the jury. ltia v.50F.no.8-44