94 1'1IIDlllUL RJIlPORTlll:a.
. MEARS
(Oitcult Court ot i Appeals, Eighth Olrcuit. April 10, 1899.) No. 1,131.
1
APPlIlALSDf EQUITy...,RlIlCORD...,FAILURE
taken in an equity caUSe in a federal court must be made a of the recordalldcertified on appeal, otherWise it wJll be disregarded; an,4,'unless the recotd' contains some evidence to sustain the finding, the decree' will be reversed.'; ,
ro .FILE PROOF'S.
S.
EQlnTY'PRAOTICE-MANNER OF'TAKING ,PROOF's.
'.restimony can only be ,taken orallJrbetore the court on the hearing of an equity cause "upo;rqlue notice given, alf prescribed by previous order," with eql:1ity rule g7. It cannot be so. taken 011 an ex parte
Appeal from the Circuit of the United for the District ,ofNocth Dakota.' ,!', . E. A,sliley Mears (W.n. 'Standish,'(}n brief), for appellant. John"':-.Greene (John P.' 'CowaD,onblief),for appellee. bAillWEIiL,. THing, dtcuit Judges. · , . . ,. , , . i ' ,1 · . j
a greatdea.lofjrreleequitable title to. the in :fjlea t(), the which !o allege.AA ,fullY, as the pleading p,revailmg lD ,In eqwpi ,whatclaJJ;D he had; nor be file the ,as eXhibits to the answer. ·were ,p\>;t l;i;I'()ught, t9t a hearing. AI?pellee fi,led. a repli<:a,tioll to the answer. qIl 6, 1897, c()unsel ..fot appellee order; pp. .the rule setting the cause f?r hearing on Decemper other than the entry of this order mthe rule bo()k, was given, to .the appellant, which was "for,ftnal hearing upon the bill,answer, an4 to be at that tiine taken orally.beforethe, co:urt." that day there was a. hearing, and a decree in favor' of the appellee; The decree recites. i
Circuit tr9lq ireal plulrging! tQ est. 9T:'ieswte in it 10oselY.4rawn, and vant. set
d.ALDWELL,
hIs bili to'remove a An .answer, }Vas. filed, ,whIch,
cla,imed some in!er-
On
'CENTRAL TRUST CO. V. CHATTANOOGA, R. & C. R. CO.
27&
"This. cause came on for hearing at.this time before the court, pursuant to the order setting the same down for hearing, plaintifl' appearing by John F. Cowan, Esq., his attorney,· and no appearance being made on behalf of defendants; and after hearihg evidence and· proofs adduced on behalf ofplaintifl', . and arguments of counsel, it is ordered * * ·." .
The record fails to show any of the evidence, except the contract or agreement under which appellant claims his equitable interest in the land, andwllich, in connection with the answer, show that he has an equitable interest therein; but there is. Ilothing whatever in the record showing upon what evidence the court below rendered a decree in fav{)r of the appellee. On appeal from a decree in equity the record must show some evidence to sustain the findings, otherwise the decree will be reversed. In the case at bar the record shows that appellant has an equity in the lands, and there is no evidence whatever showing that appellee has a better title, or any title which should prevail in a court of equity over that of the appellant under his contract. The record shows that there was oral testimony intrdduced, presumably in pursuance of the order taken on December 6th, but there is no warrant of law for oral testimony to be taken at the hearing of a cause in equity on an ex parte order made by counsel. Section 862, . Rev. St. U. S., provides that: ''The mode of proof in causes of equity and of admiralty and maritime jurisdiction shall be according to rules· now or hereafter prescribed by the BUpreme court except as herein specially provided."
The supreme court, in pursuance of this statute,bas adopted rules for the taking of testimony. The sixty-seventh equity rule provides the manner in which testimony may be taken. That rule does not permit testimony to be taken orally at the final hearing, except "upon due notice given as prescribed by previous order." When oral testimony is presented, it must be taken down and made part of the record, and upon appeal certified to this court; otherwise, it must be disregarded. Blease v. Garlington, 92 U. S. 1. In the case cited the whole subject is considered, aud the proper practice settled. There being no evidence in the record to sustain the decree, it must be reversed, and the cause remanded, with leave to the parties to amend their pleadings as they may be advised, and to take proofs. Ordered accordingly. CENTRAL TRUST CO. OF NEW YORK v. CHATTANOOGA, R. & C. R. CO. et at OWEN et al. v. JONES. (Circuit Court of Appeals, Fifth Circuit. No. 784. 1. RAILROADS-MORTGAGE ON FUTURE-AcQUIRED PROPERTY-GENERAL
May 16, 1899.)
LAWS. There being in force a general law for the incorporation of railroads which authorizes the mortgage of future-acquired property, the fact that the original or amended charter of a railroad company does not authorize a mortgage ot after.:acqulred pl'operty will not affect the right to execute