Davis v. Patrick (122 U.S. 138)

This is an action at law brought in a court of the state of Nebraska, on the twenty-fourth of November, 1880, and removed, on the petition of the defendant, into the circuit court of the United States for the district of Nebraska, by Algernon S. Patrick against Erwin Davis, to recover certain sums of money. There are two causes of action set forth in the petition by which the suit was commenced. Under the first one, the plaintiff claims to recover $2,677.90, with interest from September 3, 1877, and $8,806.92, with interest from February 7, 1877. No question arises here as to the first cause of action. The second cause of action alleged in the petition is, that, on or about the fifteenth of November, 1873, the plaintiff was employed by the defendant to transport silver ore from the Flagstaff mine, in Utah Territory, to the furnaces at Sandy, in that territory, for a certain hire and reward then agreed upon therefor between the parties; that the plaintiff continued in that employment until on or about the twentieth of November, 1875, at which date the account of services was settled and stated from the books of the defendant, and there was then found to be due to the plaintiff $26,539.54; and judgment is prayed for that sum, with interest from November 20, 1875. The answer of the defendant to the second cause of action is a general denial. At the trial before a jury there was a verdict for the plaintiff, on the twentieth of June, 1883, for $50,015.72, and a judgment accordingly, to review which the defendant has brought a writ of error.

The plaintiff moves to strike the bill of exceptions from the record, for the reason that it was not allowed and signed in proper time. On the day the judgment was entered, June 25, 1883, a written stipulation between the parties was filed, providing that the defendant should have 40 days to prepare and present to the court his bill of exceptions, and that the plaintiff should have 20 days thereafter to examine the same and make any suggestions of omission, addition, or correction thereto. On the sixteenth of August, 1883, the writ of error was allowed and filed, a supersedeas bond, duly approved, was filed, and a citation was duly issued, the writ of error being returnable at October term, 1883. On the fourteenth of September, 1883, the following written stipulation, entitled in the cause, was made between the parties: 'The bill of exceptions in this case having been partially settled by his Honor, Judge DUNDY, and he desiring to be absent from the district for a month or more, and being unable to settle the remainder of the bill before leaving, it it is hereby stipulated that the same may be settled and signed at any time before November 1, 1883, and that the reo rd may be filed in the supreme court by the first of December, 1883, with the same effect as if filed at the beginning of the October term.' The term of the court at which the trial was had and the judgment rendered adjourned sine die on the twentieth of October, 1883. The succeeding term of the court began on the twelfth of November, 1883. The bill of exceptions was allowed 1883. The bill of exceptions was eighth of December, 1883, and was filed on the same day. The record was filed in this court on the twenty-sixth of December, 1883.

J. M. Woolworth and Joseph H. Choate, for plaintiff in error.

John F. Dillon and John L. Webster, for defendant in error.

[Argument of Counsel from pages 141-142 intentionally omitted]

BLATCHFORD, J.