Ogden City v. Weaver

THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court. As the issues arising on the first cause of action were tried .before the court without the intervention of a jury, and as the finding was general, the only question open for review is whether error was committed in the rejection or admission of evidence, or in rulings upon any motions made in the progress of the trial which are reviewable on appeal, to which an exception was duly saved. This court cannot review the decision of the trial judge upon questions of law which seem to have been considered by him, as appears by an opinion which has been incorporated into the transcript, unless the questions so considered are raised and presented by exceptions to the admission or exclusion of evidence which are duly preserved by the bill of exceptions. In the present case the opinion of the learned judge of the trial court is hot contained in the bill of exceptions, and for that reason it forms no part of the record proper. It was inserted in the transcript, according to the usual practice in that behalf, for the convenience of counsel and for the information of this court; but assignments of error which are addressed to the views that were expressed by the learned judge of the trial court in deciding the case, even if his opinion had been incorporated into the bill of exceptions, cannot be noticed, unless a proper foundation was laid in the bill of' exceptions for obtaining a review, based upon rulings which were made during the progress of the trial. It is to be further observed that errors which are specified in the assignment of errors cannot be noticed on appeal unless the action complained of is disclosed by the bill of exceptions, nor unless it appears by referring thereto that an exception to the action complained of was properly taken during the-progress of the trial. These rules of procedure are well established by numerous adjudications, a few of which only need be cited: Searcy Co. v. Thompson, 27 U. S. App. 715, 13 C. C. A. 349, 66 Fed. 92; Adkins v. W. & J. Sloane, 19 U. S. App. 573, 8 C. C. A. 656, 60 Fed. 344; Trust Co. v. Wood, 19 U. S. App. 567, 8 C. C. A. 658, 60 Fed. 346; Insurance Co. v. Folsom, 18 Wall. 237, 253, 21 L. Ed. 827; Stanley v. Supervisors, 121 U. S. 535, 547, 7 Sup. Ct. 1234, 30 L. Ed. 1000; Lehnen v. Dickson, 148 U. S. 71, 73, 13 Sup. Ct. 481, 37 L. Ed. [567] 373; Consolidated Coal Co. of St. Louis v. Polar Wave Ice Co., 106 Fed. 708. The application of the foregoing rules to the case in hand leaves but a few questions which are open for consideration and review. The first point insisted upon by counsel for the plaintiff in error is that the trial court erred in holding that a decree which appears to have been rendered by the district court for the Third judicial district of the state of Utah in a case which was brought by Ogden City against the Bear Lake & River Waterworks & Irrigation Company and the Bear River Irrigation & Ogden Waterworks Company et al. was not a final decree, determinative of the rights of the plaintiff and the defendant in the present action. With reference to this contention it is to be observed that the record and decree in the case pending in the state court seem to have been offered in evidence on the trial of the case at bar by the defendant below; that is to say, by Ogden City. They were objected to at the time by the receiver, and the bill of exceptions recites that they were admitted “subject to objection,” the trial court undertaking to rule on their admissibility afterwards. We are not advised by the bill of exceptions whether they were eventually admitted or rejected. Neither are we informed, except by the opinion of the trial judge, which, as already stated, forms no part of the record, what the view of the trial court was with respect to tfye finality of the decree. In this condition of the record, we might well decline to notice the contention above stated; but, as the record of the case in the state court is before us, we have examined it with some care, and are of opinion that the trial court was right in holding that the decree was not such a final adjudication of the receiver's rights as could be pleaded in bar of the present action. An inspection of the decree shows that it was entered in an equity case which appears to have been pending between the parties above named; that the state court determined one question, namely, that the contract between Ogden City and John R. Bothwell, of date August 6, 1889, was Invalid; that after such adjudication the case was referred to a mas lei*, with directions to state an account between the parties with reference to the value of (he waterworks proper!.,)* which was effected by tlie contract, and with reference to all the business transactions of the parties thereunder during a period of eight or nine years, while the contract was supposed to be valid; and that such accounting is still pending and undetermined before the master. We think it clear, from such examination as we have made of the decree, that: it was merely interlocutory, and not such a final adjudication as will bar the plaintiff’s right to a hearing in the present action, and that no error was committed by the (rial court in excluding the decree for that reason, if we assume that it was in fact excluded. Perkins v. Fourniquet. 6 How. 206, 12 L. Ed. 406; Lodge v. Twell, 135 U. S. 232, 10 Sup. Ct. 745, 34 L. Ed. 153; McGourkey v. Railway Co., 146 U. S. 536, 13 Sup. Ct. 170, 36 L. Ed. 1079; Denison & N. R. Co. v. Ranney-Alton Mercantile Co. (C. C. A.) 104 Fed. 595, 605. It is urged, however, in behalf of the defendant city that if the decree which it has secured in the state court is interlocutory and not [568] final, and for that reason cannot be invoked in support of its plea of res Judicata, nevertheless the mere pendency of the case in the state court should have induced the trial court to suspend all proceedings in the case at bar until the action in the state court was finally heard and determined. This contention, however, is based upon a misconception of the character of the present proceeding, which is an action at law, in personam, to recover a sum of money due under a contract. It is not a case which affects the custody of any property over which the state court has first acquired jurisdiction. Neither is it a case which involves any interference with the orderly conduct of the litigation in the state court. It is simply one of those cases, such as frequently occur, where a state court and a federal court, in the exercise of a jurisdiction which rightfully belongs to each, are called upon to determine the same question, and the fact that they may disagree and decide the question differently in no wise interferes with the right of either to proceed. It is well settled that the fact that a suit upon a caqse of action is pending in a state court will not sustain a plea of lis pendens to a suit upon the same cause of action subsequently filed in a federal court. Stanton v. Embrey, 93 U. S. 548, 23 L. Ed. 983; Insurance Co. v. Harris, 97 U. S. 331, 24 L. Ed. 959; Buck v. Colbath, 3 Wall. 334, 345, 18 L. Ed. 257; Standley v. Roberts, 19 U. S. App. 407, 421, 8 C. C. A. 305, 59 Fed. 836. The rule is quite different, of course, when, after a suit is brought in a state court which affects the custody of property, or at some stage of the proceeding may affect its custody, a suit of a like nature is subsequently brought in a federal court. In such cases the rule is well established that the court which first acquires jurisdiction of the res, actual or constructive, is entitled to proceed without let or hindrance on the part of any other court of co-ordinate jurisdiction. Merritt v. Barge Co., 49 U. S. App. 85, 24 C. C. A. 530, 79 Fed. 228; Zimmerman v. So Relle, 49 U. S. App. 387, 25 C. C. A. 518, 80 Fed. 417; Gates v. Bucki, 12 U. S. App. 69, 4 C. C. A. 116, 53 Fed. 961. But the principle involved and the rule stated in these cases is not applicable to the case at bar, the action being at law and in personam to recover a sum of money claimed by the receiver to be due to him under the terms of a contract. Whether the contract is valid or invalid can be determined in an action at law as well as in equity, and a nonresident suing in a federal court is entitled to have the question determined by that tribunal unless it has been finally adjudicated by some other court in an action to which he was a party. It is further claimed in behalf of the city that the trial court erred in holding that the contract with Bothwell which was set out in the first cause of action was valid, and in sustaining a recovery thereon. Concerning this contention it is only necessary to repeat what has already been said, — that error cannot be assigned as respects the opinion of the trial court, which has found its way into the record, and that, if counsel expected to raise the question respecting the validity of the contract, they should have stated their full objection to it when it was offered, and obtained a distinct ruling as respects its validity and admissibility. This was not. done. The bill of exceptions shows that it was objected to when offered only on the [569] ground that the execution of the contract was authorized by a resolution of the city council, rather than by an ordinance, and that it was “incompetent, irrelevant, and immaterial.” The bill of exceptions does not show any distinct ruling as respects these objections, the statement being that it was received “subject to objection.” But, even if the bill of exceptions did disclose a distinct ruling upon the first of the above objections, we should be of the opinion that it was untenable, inasmuch as the statutes of Utah did not in terms provide tiiat such agreements as the one here involved should be executed in pursuance of an ordinance and not otherwise, and inasmuch as the contract appears to have been spread at large upon the records of the city, and to have bo;en treated by it as valid for a period of years. Under such circumstances, the fact that: the council approved the contract and authorized its execution by a resolution, and not by an ordinance, cannot be regarded as affecting its validity after this lapse of time. Board v. De Kay, 148 U. S. 591, 13 Sup. Ct. 706, 37 L. Ed. 573; Illinois Trust & Sav. Bank v. City of Arkansas City, 40 U. S. App. 257, 22 C. C. A. 171, 76 Fed. 271, 286, and cases there cited. If the further objection to the admission of the contract that it was “incompetent, irrelevant, and immaterial” was intended to mean anything more than that it was incompetent because it had been authorized by resolution, and not by ordinance, then this objection, even if a definite ruling had been obtained thereon, was too general to be of any avail in an appellate tribunal, because it did not advise the mal judge for what further reason it was claimed to be incompetent. Insurance Co. v. Miller, 19 U. S. App. 588, 8 C. C. A. 612, 60 Fed. 254. Obviously, therefore, the question whether the Bothwdl contract was invalid is not presented to this court in any such form as would justify us in considering and deciding it. This disposes of all the objections which have been interposed to the judgment, on the first, cause of action which we deem, it necessary to notice. The judgment on the second cause of action (being the one involved in case No. 1,493) was obtained before a jury, as heretofore stated; and, as respects this latter judgment, we are of opinion, after an examination of the bill of exceptions which was settled in that case, that the only question open for review on writ of error is whether the second count stated a good cause of action. For convenience, evidently, as well as for the sake of brevity, the pleader who framed the second count adopted all the allegations of the first count up to a certain point, without repeating them in hsee verba. No objection was made to this pleading either by demurrer or otherwise, but in due course an answer was filed by the defendant below which was substantially the same as its answer to the first count; and the two counts were not essentially different, except that the second demanded a judgment for water that had been furnished after the receiver took charge of the waterworks plant. The pleadings remained in this form for more than one year, but after a jury had been impaneled for a trial of the second count the defendant below for the first time interposed an objection to the introduction of any evidence, upon the ground that the complaint did not state a cause [570] of action. This objection was founded entirely, as it seems, upon the fact that in the second count certain allegations contained in the first count had been adopted by the pleader without reiterating them. It is manifest, we think, that, whether the method of framing the second count was correct or otherwise, the defendant waived any objection thereto by failing to demur to the count, and by answering it precisely as if it had repeated in due form all of the allegations up to a certain point which were contained in the first count. A litigant who intends to object to a pleading on such grounds as the one now under consideration cannot hold the objection in reserve until a jury is impaneled, and then compel a reformation of the pleadings. If the mode of pleading which the plaintiff saw fit to adopt was for any reason unsatisfactory to the defendant, it should have challenged the count in due season by demurrer. Finding no error in the record of either case, other than as above stated, which can be reviewed on writ of error, the judgments below are affirmed.