SIGAFUS V. PORTER.
SIGAFUS v. PORTER et at. (CIrcutt Court of Appeals, Second Circuit.
1. CERTIFICATION OF QUESTIONS TO SUPREME COURT.
February 18, 1898.)
Under section Gof the act of 'March 3, 1891," the practice of certification Is Intended to be 'availed of only when the certifying court is In doubt about the specific question or '. questions certified, and not as an allowance of appeal, whereby about which no doubt is entertained may neverthe-· less be passed up for decision. Under rule 37 of the supreme court, providing that certlficates"shall con· tain a proper statement of the facts on which such question or proposition of law,arises," it is the fundamental facts that are to be stated, and not the evidential facts from which the fundamental facts are found. ,
SAME-STATEMENT OF FACTS.
In Error to the Circuit Court of the United States for the South· erriDistrict of New York. Motion to amend certificate of questions to the supreme court. Niles & Johnson, for plaintiff in, error. Stickney, Spencer & Ordway, for defendants in error. 'Before LACOMBE and SHIPMAN, Circuit Judges. PER CURIAM. Either counsel in this case or this court is greatly mistaken as to the functions of a certificate under section 6 of the act of March 3, 1891. The' certificate, as it is now framed, presents in an alternative form the single question What, under the facts stated, was, the measure of damages recoverable? If it be amended as prayed for, a multitude of other questions will be introduced; not, indeed, as questions separately certified, but as questions which will have to be decided by the supreme court before the certified questions can be answered. It is believed by this court that the practice of certification is intended to be availed of only when the certifying court is in doubt about the specific question or questions certified, and that it ought not to be availed of as an "allowance of appeal" whereby questions about which the certifying' court had no difficulty' in making up its mind may nevertheless be passed over to the supreme court for its decision. Such a practice might prove very convenient for the circuit courts of appeal, but we are inclined to doubt whether it would commend itself equally to the supreme court. Now, in the cause at bar this court, by reason of an apparent conflict of authol'ities,-disclosed by a somewhat exhaustive examination of text-books and decisions,-was, and still is, honestly in doubt as to what, upon the facts stated, is to be taken as the measure of damages in causes tried in the federal courts. It desired the instruction of the supreme court for its proper decision of that vexed question, and the act of 1891 provides the method for obtaining such instructions. But as to none of the other questions arising on the' 32, assignments of error did this court find any difficulty in I'eaching a conclusion, as must be manifest from .the opinion filed, which disposes of each assignment seriatim, and states
with more or less brevity the reasons for such decision in each case. It is quite possible thf\t .il;1 of these assignments ;"indee!l",.it"umy be wrong :\:s to each a:ntl etery'one' ()fthe'r:I1;but it is th6ug'tit'ftlat the proper practice for the correction Ofliluch errors is by certiorari, and '. ."i' not by certificate.."." P)aiIlJtiff jp err()r al;lksto' have per)llating--,certain parts of the evidence. which .he 'has selected.' Defendllnts in'el'ror inslstthaf thitf seleetioni'is tinfair,'andask that furtlierquofutlons;to:b'e selectM'by lidMIl. .It is quite w()uld, satisfy both.. apparent that no "selection" from the parties iand· neitberthe coud (below, nor. the .jury, nOr this court passed onanysuch,".selecfion," but on the body of proof. '['he foundlltion of the motion'Js the ill, rul,e3,7pf thestIPi'em,e c'Ourt which provides that certIficates' ttshan' corifairi 'a proper statement of facts ,qn;wmch propoaitipn, of law aristjl'j.,,; B,ut the very phraseology of this clause indica,tes' tb,atWJ is the fundtl-, that the, which evidenti\ll facts are inthe fundamental facts are fo 11I1 (1.. .When ,it to .be a question cluded as part of of inixed law and fact," such of pure law,' and becom:eli' it as involves questions ofi jl1dgmeri1!by the court upon the weight or effect of testimony, or facts adduced in the case. And it is certainly settledbyauthol'ity that certification is not tor,The availed ;of to propound to the supremecourt'.any such "question of:mixt!d laW and fact." ;Jewellv. Knight, 123 426, 8 Sup.CiL 193: We find DO fundamental fact in the proposed amendment not already included in our statement; only evidentiallfacts from which 'plaintiff in error may make some contention that the jury 'and this court erred in finding one or m')ret>fthe fundamental Jacts against plaIntiff in error,or that the verdict wa,s excessive. For these reasons the mo.. tion is denied.
(Circuit Court of AppeAls; Ninth CI:rctiit.
February 7, 1808.)
APPEAL AND ERROR-ExCEPTIONS TO INSTRUCTIONS'-TIME FOR TAKING.
. ,Exceptions to Instructions taken after the jUry. bad retired 'will not be' con-· sidered, thQugh It Is shown by the recprd tbat ,by the practice and l'ullngs of the. trial court S\lch exceptions were; not, allowed to be In the presence of the jury.
In Error to the Circuit Court of the United,States for the Northern Division of the District of Washington. . George H. Fearons, L. D.' McCutcheon, and R. B. Carpenter, for plaintiff in error. , Harold Preston, E.M. Carr, and L. C. Gilman, for defendant in error. ,.; r ROSS"and MORROW, Qircuit Judges. ;., ,·.' , '. J.i .'-'. ;, .;
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