City of Grafton v. Gentry Bros.' Shows

PRITCHARD, Circuit Judge. This case comes here on writ of- error from the District Court of the United States for the Northern District of West Virginia. The defendant in error at the first call of this case entered a motion to dismiss upon the grounds (1) that the record was not filed and printed as provided by rule 16 (150 Fed. xxix, 79 C. C. A. xxix); and (2) the petition for writ of error was not accompanied by an assignment of errors. Notwithstanding the fact that the motion to dismiss was set down for hearing on February 12, 1917, and notice thereof was given to plaintiff in error, counsel failed to appear or file any brief in opposition thereto, and, further, when the case was called for argument, counsel did not appear, but filed a brief in opposition to the motion, and also a brief on the merits. [1] Counsel insist that we ought not to dismiss the writ of error, inasmuch as the clerk of the District Court has certified that the assignment of errors was properly filed in the court below on October 4, 1916, and should have been incorporated as a part of the record, but by inadvertence was omitted therefrom, notwithstanding the assignment of errors had theretofore been properly filed and was in the papers when the record was prepared. ■ It appears that counsel were served with notice of motion to dismiss on the 2d day of February, and on the 7th day the clerk issued the certificate in question which was filed here on the following day, to wit, the 8th day of February. Thus it appears that this certificate was made after the motion to dismiss was filed in this court. Under the circumstances, it was the duty of counsel, if they desired to have the assignment of errors made a part of the record, to have suggested a diminution of the record and requested this court to grant an order directing [648] the clerk of the District Court to transmit to this court that portion of the record which had been omitted.- This counsel failed to do. The clerk of the lower court, in the absence of such authority,- had no right to transmit the assignment of errors after the record had been made up, transmitted, and the case docketed in this court. Thus it will be seen that counsel have utterly failed to comply with the rule as respects the preparation and filing of assignment of errors. Among other tilings, rule 11 (150 Fed. xxvii, 79 C. C. A. xxvii) contains the following provision: “ * * * But tlie court, at its option, may notice a plain error not assigned.” In pursuance of this provision we have carefully examined the charge of the court below, and its refusal to grant certain instructions requested by the plaintiff in error; but, being of opinion that the court did noNerr in either instance, we would not be inclined to disturb the judgment of the court below, even if the case had been properly brought here, and this disposes of the point sought to be raised by the second alleged assignment of error. [2] In addition to what we have said, it appears from an examination of the alleged assignment of errors that the first assignment is not in conformity with rule 11, in that it does not quote the full substance of the evidence admitted. Newman v. V. T. & C. Steel & Iron Co., 80 Fed. 228, 25 C. C. A. 382; Cole Mfg. Co. v. Mendenhall, Adm’x (decided by this court March 8, 1917) 240 Fed. 641, - C. C. A. -. [3] And the third assignment, which relates to the refusal of the court below to set aside the verdict of the jury, is not well taken, inasmuch as the granting or refusing of such motion is in the discretion of the trial judge, and therefore not reviewable. This disposes of the point sought to be raised by the third alleged assignment of error. It sometimes occurs that, after an examination of the record, as in ■this instance, tire judgment of the court below should not be disturbed, even if the case had been properly before us; but it not infrequently occurs that such is not the case,- and we sincerely trust that the attorneys of this circuit will in the future conform more strictly to the rules and practice by which this court is governed. For the reasons stated, the motion to dismiss- is granted. Dismissed.