Where the effect of the denial of plaintiff's motion for
judgment is simply to postpone consideration of the subject until
the trial, plaintiff's interests are not prejudiced, and there
cannot be reversible error.
Occurrences at the trial cannot be considered if the record
contains no bill of exceptions.
A paper in the record signed by the plaintiff is not a bill of
exceptions although styled exceptions to charge of jury and
purporting to be initialed by the trial judge.
Origet v. United
States, 125 U. S.
243.
Even if a part of the record were treated as a bill of
exceptions, if all matters therein depend for their solution upon
examination of evidence not in the record, this Court will affirm,
not having any means for determining whether reversible error arose
from the action of the court.
186 F. 477 affirmed.
The facts are stated in the opinion.
Memorandum opinion by direction of the Court. By MR. CHIEF
JUSTICE WHITE:
The trial court instructed a verdict for the defendant,
Page 222 U. S. 284
and the court below affirmed its action. The suit was to recover
upon the bond of a clerk of a circuit court. 186 F. 477. We think a
motion to affirm must prevail.
All the errors relied upon complain of a refusal to grant a
motion of the plaintiff for judgment because of the insufficiency
of "an affidavit of defense" and of various rulings made at the
trial. Although the motion for judgment was denied, its merits were
not passed upon, since the effect of the ruling was simply to
postpone consideration of the subject until the trial, and
therefore the exception, which was formally allowed, was simply "to
the refusal by the court to decide the issue of law raised by
plaintiff's motion for judgment," etc. But afterwards, the
defendant filed formal pleas to the statement of plaintiff's claim
and joined issue thereon. As the ruling left it open to raise the
question presented by the motion, it follows that the mere order of
postponement did not prejudice, and cannot possibly constitute
reversible error. As to the contentions which relate to occurrences
at the trial, they cannot be considered, as the record contains no
bill of exceptions. The paper in the record styled "Exceptions to
the Charge to Jury," initialed "J. B. McP., Trial Judge," and
signed by the plaintiff, is not a bill of exceptions (
Origet v.
United States, 125 U. S.
243), but if it were to be treated as a bill of
exceptions, as all the matters therein referred to depend for their
solution upon an examination of the evidence, which is not in the
record, it follows that we have no means of determining whether
reversible error arose from an action of the court on any of the
subjects to which the paper refers. This being the case, it becomes
our duty to affirm.
Affirmed.