180
FEOEltAL REPoR±ll:R,
vol. 63.
undertook to move the engine along the track upon which plaintiff was injured. The first cause of action is based upon alleged negligence of the master in failing to furnish proper machinery; the second, upon alleged negligence of the coservants of the plaintiff in the handling of· the· engine. Under the l'llles of the common law, the first is a cause of action against the railway company, but the second is not. The first cause is therefore based upon the legal duty, imposed by the common la-W upon the master, but not upon the employes, of. furnishing safe machinery for the use of its servants, whereas the second cause, so far as the railway is concerned, is based upon the statute of Iowa, which makes the railway company liable, under given circumstances, for the negligence of its servants resulting in injury to a 60employe. It seems clear, therefore, that this suit fsclearly separable into parts, and in fact, upon the trial, must be so separated; and that, when thus separated, there is presented a' controversy between the plaintiff and the railway company over' the question whether the engine used for switching purposes in the yard at Sioux City was or was not properly constructed and equipped, and to this controversy the defendants Smith: and Pollard are not parties. If this be true, then, as the suit involves a controversy wbolly between citizens of different states, it was properly removed by the defendant company, and the motion to remand must be overruled.
MUTUAL LIFE INS. CO. OF NEW YORK v. CONOLEY.
(Circuit Court of Appeals, Fourth Circuit.
Ocrobe1' 2, 1894.)
No. 81. 1. APPEAL-Ass!lUUlENTSOF ERROR-TIME: OF FILmG-ExTENSION OF TIME.
Assignments of error not filed in the trial court by plaintiff in error . or appellant at the time he files his petition for writ of error or appeal, as required by rule 11 of the circuit court of appeals, will not be considered on appeal, though the trial court, at the time such petition is filed and the writ or appeal is allowed, grants additional time for filing assignments of error, and they are filed within the time granted. Questions of law depending on facts which have not been certified in a bill of exceptions will not be disposed· of in this court.
2. SAME-REVIEW.
Error to the Oircuit Court of the United States for the Eastern District of North Oarolina. This was- an action by Margaret E. Conoley against the Mutual Life Insurance Oompanyof New York on a life insurance policy. Thtere was a verdict and judgment in favor of plaintiff, and defendant brings error. Affirmed. Walter H. Neal, for plaintiff in error. , D. L. Russell, defendant in error. Before GOFF and SIMONTON, Circuit Judges, and HUGHES, District Judge.
MUTUAL LIFE INS. CO. 11. CONOLEY.
181
GOFF, Oireuit Judge. This action was instituted by Margaret E. Conoley against the Mutual Life Insurance Company of New York to recover the sum of $5,000 on an insurance policy issued by said company on the life of Simeon Conoley, payable to the plaintiff. The case was tried to a jury, and, on the verdict rendered, the court, on the 9th day of January, 1894, entered judgment in favor of the plaintiff for $5,383.33, with interest and costs. This case was an action on the law side of the court, and the judgment so rendered could only be reviewed by writ of error allowed on peti· tion filed with assignment of errors accompanying the same, ten· dered before the granting of the writ. U. S. v. Goodrich, 4 C. C. A. 160, 54 Fed. 21; U. S. v. Fletcher, 8 C. C. A. 453, 60 Fed. 53. Rule 11 of this court provides that: "The plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors, which shall S'et out separately and particularly each error asserted and in· tended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed." 1 C. C. A. Xiv., 47 Fed. vi.
In this case the court below, on the petition of the defendant below, filed January 24, 1894, praying an appeal, granted the same on that day, and, in the order so granting it, allowed said de· fendant 30 days in which to file assignments of error. The assignments were filed February 21, 1894, 43 days after the judgment was rendered, and 28 days after the order had been entered allowing an appeal. It is plain that thi's court cannot consider the errors so assigned if it regards and is governed by its rule as dted. We have had occasion several times heretofore to request attention to the rules applicable to the questions now under consideration, and to the necessity for a strict adherence to the mode of procedure designated by them. We now do so once more, in· dulging the hope that no occasion will arise in the future requiring us to refer to them again in this connection. Van Gunden v. Iron Co., 8 U. S. App. 229, 3 C. C. A. 294, and 52 Fed. 840; Improvement Co. v. Frari, 7 C. C. A. 149, 58 Fed. 171. The record discloses the fact that the defendant below did not .except to the action of the court in entering the judgment complained of, and did not tender a bill of exceptions, and have it signed and made part of the record as required by the law and the rules of practice. The defendant below contends here that the court below erred in entering said judgment, because the questions of law arising on the findings of the jury and the construction of the policy of insurance were with the defendant. But the plaintiff below now insists it was shown by the testimony which, under the circumstances of this case, it was proper to consider in construing the application for and policy of insurance, that there was no error in the judgment of the court. In the absence of a bill ,of exceptions certifying the evidence applicable to the same, it is impossible for this court to pass on the questions presented by several of the assignments of error, even if the latter could be considered. We feel compelled to enforce the provisions of the rules .and the requirements of the practice alluded to, and to again an-
182
(I'EDERAL,RElPORT.ER.
\'01.1)3;
this! 'eDuct,' in order,: to seeureunlformity in the pl"bceedinga of the circuit and distrietcourts, as well as in its own, will 'heueafter il\Siat upon a strict i,compliance with the and we do this in the present case the ,more readily ldr the reason that its rellordshows that no substantial error was 'committed by the court . below, and that, consequently, no injustice will in fact be doneto.'the parties thereby, while, much good may result therefrom" we hope. The judgment below isaffirined.
THE, DAGO. UNITED STATES'v. THE DAGO. '(Circuit Court of Appeals, 'lJ'oW:th Olrcmt. No.S7. A reMearlng will not be granted on a petition not complying with any of presorlbE\d '1;herefor of court" but containing merely an' argument at'! to the Insufficiency of the proof to sustain the ; , .. : : . ' 1.,-(,.
June 2, 1894.) " .", , '
,
', "
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Appe.u from the District Court of the United States for the trict of'MaryJand. This was ·a . o'Ii behalf Of, tbe steamship Dago to rescind a I1eversing a decree of a district court dismissing a libel by the, against' the vesseV '61 Fed. 986. The libel, was filed a forfeiture, linder the act of FeMuary 15, 1893, for enteri,ng a port of the United States withouthavingobfuined a bill of health "fl'omthe nae consul, or other consular officer of theUn;ited States at the port of: departure, as required by seCtion 2 of t.ht;! act., "' ' The petition was as follows: The petltl(ln (lfthe steamship Dago andWilllam Scroggie, her master, blyshows, UntpY(lur honors that by the 'third section of, the, Acts of Congress, of 1893 (chapter ll'l),-tbf :,tct construed in the opinloll,of tUs cause,-it Is provided: "None ,of thepenilltles herein 'Imposed shall,attach to any vessel or owner, or the 'Officer thereof, until a copy of this aet with the rules and regulations D;l>llde in ,pursuance thereof, has been posted Up in the office of theconsul or otl1.,er cOJ;lsular officerpf the States for !ten days in the port froI1l which' satd vegsel sailed; and thfi! certUicate of such consul or consular' officer over Iifs official signatUre, shall 'be cpmrletent evidence of such posting In any court of the United Sta:teg.', By tlle }{evlsed Statutes of the United States (sectjlonl137"), the definitions are given:' "Consul general, consul and SllaUbe d me4 to denpte full, principal and perma' nent as, and substitutes. * * * ConsuIarofflcers shall be deemed to include consuls general, consuls, commercial. ill@:ents, 'deputy conSUls, vice consuls, vice agents and consular 1\;J;ld none others." T'he posting of the act of ,February 15, l8ltS, ft.!:j,c!. Ule, regul,atloll!l of the treasury department, was made February ,2, 4" 1893, ','Geral,dijq,seley, ,A,ctlng, "U,. S., Consul fO,r, B, rI,,stol" (RecoM,':7). ",The signer, accordihg't(l ,his signature, ,w,as not a fun, principal, 'and' permanent consular officer;: 'as distinguished, from a subordinate and 'a which is defined to ,betJle meaning of the word "consul" by section 1674. ,¥en.ce, his 0,1' the was SUch a posting as, is contemplated by the actnow under construction. Hence, there Is no proof (>f the pOstlng;aIidnone of the 'Perialtleg of the a<;t can be,vislted on the Dag() und,er 8,: supra. The 'provision which aJlo\vs'a certllleate of the doing: