Ransome Concrete Machinery Co. v. Moody

PER CURIAM. The suit was brought to declare void a contract between the parties and to require defendant to account for and pay over to plaintiff certain moneys which plaintiff claimed were improperly paid to defendant. The answer, inter alia, set up a counterclaim, and asked for a decree or judgment for such counterclaim. The District Court entered a decree dismissing the bill of complaint, with costs, and ordering judgment in favor of defendant and against plaintiff on the counterclaim for $54,185, with costs. At the outset of the case, the District Court pointed out to counsel that the counterclaim was an action at law. As said by the District Court: “Nevertheless, both sides have gone on, taken testimony, argued the matter, and neither in pleadings, nor during the taking of testimony, or at the close thereof, has any effort been made to get the counterclaim out of the case.” The court then proceeded to consider the counterclaim, and determined the issue in favor of defendant, as above stated. [22] Plaintiff appealed from the final decree, and also took a writ of error to the judgment on the counterclaim. In respect of the writ of error, no bill of exceptions'was settled, allowed, or filed, and no assignments of error, as required by rule 10 of this court (235 Fed. vi, 148 C. C. A. vi), were filed. The writ of error was thus improvidently allowed, and must be dismissed. Nevertheless, and laying aside this [38] point of procedure, we have examined the entire record, and for the purposes of this case only we have considered the record as if it brought up on review the whole case on an appeal from a decree in ■equity. After such review, we are satisfied that the conclusions of the District Court on the facts and as to the law were right, and, as the District Court in a careful and full opinion set forth adequately both the questions of fact and law presented to it, we 'see no occasion for further discussion. The decree is affirmed, with costs, and the writ of error is dismissed, without costs. Footnotes [1] <Js»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes [2] <§=For other eases see same topic &’ KEY-NUMBER in all Key-Numbered Digests & Indexes [3] (§^5For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes