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.'"
F!:U)En,A:to '; ,. I "
vol.
,';
v. (CirCuit, CllOurtot Atlpeals, Eighth Circuit !
May 7, 1894.)
J
No.
365· OFFIJ,ING;
.t\l'l'IllAlr-ASSIGN'HEN'l' OF
, ,In pursuance ot rule 11 ()t. the circuit court of appeals tor the eighth cirCliit (41' Fed. rl.),requiring an assignment of errors. to be filed with the pe,tition tor thew-rit of erroror'll.pp'eal, and declaring that errors not assigned ,.. aecording to this. rule will be 'disregarded, the court will not review a judglUep,t when of errors was not filed until after the writ of error was allowed. nor nnW after expiration of the six months allowed fors$g out the writ ()f' error. U. S. v. Goodrich, 4 C. O. A. 160, 54 Fed. 21, 'f{)ll()wed; ,
to the Uniteq Court in the Indian Territory. Thi$ was an action by Jane McCurtain, administratrix of Jackson F. ,McCurtain,deceased, against William F. on a promissory, note made by defendallt, payable to said Jackson F.· McCur.A demurrQl'to defendant's answer was sustained,and judgment .' for plaintiff was entered thereon. Defendant brought error. Goo. E: Nelson filed a brief' for plaintiff in error. and SANBORN, Circuit Judges, and TRAY· ER,pistrict JUdge. Citcuit Judge. By the act Qf March 3, lS!)l (26 Stat. Pll: 826, 829), now-rit of error, by whiGh a jUdgment can be reviewed call'be sued out after six months from its entry. Rule 1:1 ot'tl1lS court provides the plaintiff in error shall file with his the writ of errQi' an assignment of errors, that no writ of errqr shall be allowed until such assignment of errors has been filed, and th'rt.t' errors not assigned' according to this rule will be disregarded. judgment in error seeks to review here was en:tel.'E!q March 14, 1893. '. The writ of ,error and citatiOn are tested 1893.. No assigI).ment of errors was filed until September 18, 1,893: The. assignment of errors 'Was not filed until after the tin:).e t() sue out a writ of error to review this judgment had expired, nor ulltil more than a month after writ returned here was issued: Under our rule,which have repeatedly declared would be enforced,the supposed errors, assigned will be disregarded, and the ,affirmed, ,'Yith costs. U. S. v. Goodrich, 4 C. C. A. 00. v. Colorado Eastern Ry. Co., 4 160, 54 ,Fed. 21; Union Pac. C. C.1\..161, 54 Fed. 22;:F'1ahrity v. Union Pac. Ry. Co., 6 C. C. A.. 167, '56 Fed. 908. It is so ordered.
:tn
NATIONAL BANK OF COMMERCE V. FIRST NAT. BANK.
-809
NATIONAL BANK. OF COMMERCE OF KANSAS CITY, MO., v. FffiST NAT. BANK. OF KANSAS CITY, KAN., et al. (Circuit Court of Appeals, Eighth Circuit. No. 315. May 21, 1894.)
1.
ApPEAL-OBJECTIONS ROT RAISED BELOW-TRIAL BY COURT.
Exceptions to findings and rulings in an opinion delivered by the court on a trial, without a jury, of an action at law, and to a general finding contained in the judgment, avail nothing on appeal, where no request was made at the trial for any ruling on any proposition of law, or on the sufficiency of the evidence to sustain such a finding or jUdgment. Assignments of errors "in excluding legal and proper evidence offered by" plaintiff, and "in admitting illegal and improper evidence offered by" defendant, are insufficient under rule 11 of the circuit court of appeals for the eighth circuit {47 Fed. Vi.), requiring an assignment of errors to "set out separately and particularly" each error, and, when error is alleged in admission or rejection of evidence, to "quote the full substance of the evidence admitted or rejected." Refusing to permit counsel to inspect, for purposes of cross-examination, a memorandum used by a witness to refresh his memory during his direct examination, is not ground for reversal, Where, on the finding of the court on the question involved, it is clear that no cross-examination could have affected the result. In an action by one bank against another as indorsee on notes, plaintiff's president testified that he conversed with defendant's president, who became such after the indorsement, and that the liability of defendant was not questioned. Held, that testimony by defendant's president that he did not know of the indebtedness, and that in such conversation plainti!t's president had concealed it from him, was competent in rebuttal.
2.
SAME-AsSIGNMENTS OF ERROR.
8.
SAME-ERROR NOT PREJUDICIAL.
t.
EVIDENOE-COMPETENOy-REBUTTAL.
In Error to the Circuit Court of the United States for the, District of Kansas. Elijah Robinson, for plaintiff in error. Samuel R. Peters (Joseph W. Ady and John C. Nicholson, on the brief), for defendants in error. Before CALDWELL and SANBORN, Circuit Judges, and THAY· ER, District Judge. SANBORN, Circuit Judge. The National Bank of Commerce of Kansas City, Mo., the plaintiff in error, brought an action in the court below against the First National Bank of Kansas City, Ran., and W. T. Atkinson, its receiver, the defendants in error, upon four causes of action. The court below denied a recovery on the first and second causes set forth in the petition (55 Fed. 465), and this writ of error was sued out to reverse this decision. The first cause of action was based on a promissory note for $38,959, dated October 22, 1890, made by the English & American Mortgage Company, Limited, a corporation, indorsed by the First National of Kansas City, Kan., by D. R. Emmons, its president. and payable to the order of the plaintiff in error. The second C3.11se of action rested upon a promissory note for $7,500, dated Octobe,l.'