Page images
PDF
EPUB

9 F.(2d)

Harry D. Thirkield, of New York City, for plaintiff in error.

Charles L. Sylvester, of New York City, for the United States.

Before ROGERS, MANTON, and HAND, Circuit Judges.

him in the same way as that of his fellow stockholder, W. L. Mellon, whose case was before decided by the court below. 279 F. 910, affirmed by this court, 281 F. 645. Following these cases, the trial judge held that the collector could not recover the income tax from Davison. By an oversight, the attempted review by the Supreme Court of the Mellon Case miscarried, and this present action was brought to eventually secure a review by that court of the question involved in the Mellon Case. It has been sought to differentiate the Davison from the Mellon Case, In the Matter of Leopold ZIMMERMAN et al., but we regard them as involving the same question.

Adhering, as we do, to our decision in the latter case, we are of opinion the court below committed no error in following it, and its judgment is therefore affirmed.

WM. P. GOLDMAN & BROS., Inc., Plaintiff in
Error, v. UNITED STATES, Defendant in
Error.

(Circuit Court of Appeals, Second Circuit.
November 17, 1925.)
No. 129.

In Error to the District Court of the
United States for the Southern District of
New York.

PER CURIAM. Reversed in open court.

2

Alleged Bankrupts. W. O. Chappell,

Petitioner.

(Circuit Court of Appeals, Second Circuit.
November 10, 1925.)
No. 95.

Petition to Revise Order of the District
Court of the United States for the Southern
District of New York.

Frueauff, Robinson & Sloan, of New York City (R. S. Sloan, of New York City, of counsel), for petitioner.

White & Case, of New York City (W. St. J. Tozer, of New York City, of counsel), for respondent.

Before HOUGH, HAND, and MACK, Circuit Judges.

PER CURIAM. Order affirmed in open court.

END OF CASES IN VOL. 9 F. (2d)

INDEX-DIGEST

/KEY NUMBER SYSTEM)

THIS IS A KEY-NUMBER INDEX

It Supplements the Decennial Digests, the Key-Number Series and
Prior Reporter Volume Index-Digests

[blocks in formation]

II. NATURE AND FORM.

27(1) (U.S.D.C.Cal.) Injured person may
elect to bring action ex delicto for negligent
breach of contract.-Willey v. Alaska Packers'
Ass'n, 9 F. (2d) 937.

Active negligence or misfeasance necessary to
support tort action based on breach of contract.
-Id.

30 (U.S.D.C.Mich.) Action for damages for
excessive cost of army cantonments held in as-
sumpsit, and not in trespass on the case.-U. S.
v. Porter, 9 F. (2d) 153.

III. JOINDER, SPLITTING, CONSOLIDA-
TION, AND SEVERANCE.
53(3) (U.S.D.C.Fla.) Separate bills to
compel partial performance of entire contract
will not lie.-Knowles v. Albert, 9 F. (2d) 163.

[blocks in formation]
[blocks in formation]

75 (U.S.D.C.N.Y.) Answers to interroga-
tories under oath are admissions which answer-
ing party contradicts at his peril.-The Korean
Prince, 9 F. (2d) 638.

VIII. DECREE AND ENFORCEMENT
THEREOF.

88 (U.S.C.C.A.Mass.) Where question was
fully heard without objection, decree should de-
termine merits of controversy.-Linen Thread
Co. v. Shaw, 9 F. (2d) 17.

95 (U.S.C.C.A.N.Y.) Decree on libel for in-
juries for failing to provide safe place to work
and appliances held not bar to action for neg-
ligence of ship's officers under Jones Act.-
Baltimore S. S. Co. v. Phillips, 9 F. (2d) 902.
Exclusion of roll in previous admiralty suit
held proper.-Id.

ADVERSE POSSESSION.

I. NATURE AND REQUISITES.
(E) Duration and Continuity of Pos-
session.

57 (U.S.C.C.A.Tenn.) Evidence held insuf-
ficient to show adverse claim under color of
title by defendant for seven years.-Marbury v.
May, 9 F. (2d) 587.

(1025)

(F) Hostile Character of Possession.

ANTI-TRUST LAWS.

71(1) (U.S.C.C.A.Tenn.) Color of title, not See Monopolies, 12-24.
conferred by decree conveying only right, ti-
tle, and interest of parties, or by will referring
thereto.-Marbury v. May, 9 F. (2d) 587.

AGENCY.

See Principal and Agent.

AGRICULTURE.

(U.S.D.C.Colo.) Colorado Anti-Trust Act
held unconstitutional, co-operative agricultural
societies being exempted from its application.
-Beatrice Creamery Co. v. Cline, 9 F. (2d) 176.

ALIENS.

II. EXCLUSION OR EXPULSION.

21 (U.S.C.C.A.Cal.) Immigration Act of
1924 abrogates all laws, conventions, and
treaties inconsistent therewith, except treaty
rights of alien merchants.-Jeu Jo Wan v. Na-
gle, 9 F. (2d) 309.

23(1) (U.S.C.C.A.Cal.) Chinese teacher
held not entitled to enter United States as per-
son engaged in "trade."-Jeu Jo Wan v. Nagle,
9 F. (2d) 309.

APPEAL AND ERROR.

See Criminal Law, 1026-1186.

For review of rulings in particular actions or
proceedings, see, also, the various specific
topics.

III. DECISIONS REVIEWABLE.
(D) Finality of Determination.

71 (4) (U.S.C.C.A.Mass.) Decree in receiv-
ership proceeding held not final and appealable.
In re New England Oil-Refining Co., 9 F. (2d)
344.

Decree in receivership proceedings, setting
aside prior decree approving reorganization
plan, held final and appealable, if it impaired
appellants' rights.-Id.

78(4) (U.S.C.C.A.Cal.) Order granting mo-
tion to dismiss bill in equity held not final ap-
pealable order.--City and County of San Fran-
cisco v. McLaughlin, 9 F. (2d) 390.

IV. RIGHT of REVIEW.
(A) Persons Entitled.

re-

28 (U.S.C.C.A.Cal.) Chinese, holding teach-151 (2) (U.S.C.C.A.Mass.) Decree in
er's certificate, held not entitled to enter Unit- ceivership proceedings held not to diminish
ed States as "professor of a college, academy, rights of company involved in reorganization
seminary, or university."-Jeu Jo Wan v. Na- plan, so as to support appeal by it.-In re New
gle, 9 F. (2d) 309.
England Oil-Refining Co., 9 F. (2d) 344.

32 (5) (U.S.C.C.A.Ohio) Burden of proof
is on Chinese person asserting citizenship.-
Chin Lund v. U. S., 9 F. (2d) 283.

32 (8) (U.S.C.C.A.Ohio) Evidence held in-
sufficient to sustain Chinese person's claim to
citizenship, but to show that he entered United
States surreptitiously.-Chin Lund v. U. S., 9
F. (2d) 283.

32(12) (U.S.C.C.A.Ohio) Rejection of sur-
geon's testimony, tending to disprove identity
of Chinese as person who entered Canada, held
nonprejudicial.-Chin Lund v. U. S., 9 F. (2d)

283.

Finding of District Judges that Chinese per-
son was not citizen held entitled to great weight
on appeal.-Id.

III. IMMIGRATION.

46 (U.S.C.C.A.N.Y.) Naturalization of hus-
band held not to naturalize alien wife outside of
United States.-U. S. ex rel. Markin v. Curran,
9 F. (2d) 900.

53 (U.S.D.C.Me.) Declaration of intention
to become citizen does not affect power of Con-
gress to deport aliens.-Guimond v. Howes, 9
F. (2d) 412.

One having United States domicile for seven
years prior to temporary absence deportable,
where no application made to Secretary of La-
bor.-Id.

Aliens not immigrant aliens subject to de-
portation.-Id.

ar-

54 (U.S.C.C.A.Cal.) Irregularities in
rest will not justify discharge of alien subject
to deportation.-Chun Shee v. Nagle, 9 F. (2d)
342.

Regulations promulgated by Secretary of La-
bor have force of law.--Id.

Alien held not in position to complain that
particular desired witness had not been sub-
pœnaed.-Id.

Decree in receivership proceedings held not
to diminish rights of members of noteholders'
committee, so as to entitle them to appeal
therefrom.-Id.

(B) Estoppel, Waiver, or Agreements
Affecting Right.

167 (U.S.C.C.A.Cal.) Waiver of right of
appeal must be supported by adequate consider-
ation.-Bell v. U. S., 9 F. (2d) 820.

V. PRESENTATION AND RESERVATION
IN LOWER COURT OF GROUNDS
OF REVIEW.

(A) Issues and Questions in Lower Court.
171(3) (U.S.C.C.A.N.Y.) Parties assumed
to have conceded facts, where case was argued
on assumption that they were true.-U. S. v.
One Reo Truck Automobile, 9 F. (2d) 529.

175 (U.S.C.C.A.N.M.) That usury question
brought to court's attention held shown by de-
termination allowing legal rather than rate of
interest fixed in note.-Simmons v. Stern, 9 F.
(2d) 256.

(B) Objections and Motions, and Rulings

Thereon.

199 (U.S.C.C.A.Cal.) Error cannot be
predicated on order of consolidation for trial,
in absence of exception and other showing-
Williams S. S. Co. v. Wilbur, 9 F.(2d) 622.

201 (2) (U.S.C.C.A.Neb.) Alleged improper
comment of court held not reviewable, in ab-
sence of exception.-Cudahy Packing Co. v.
Luyben, 9 F. (2d) 32.

215(1) (U.S.C.C.A.N.J.) Matters in respect
to rescission of contract, and whether delivery
was to be by installments, not raised in trial
court, not considered on appeal.-Herman
Chemical Co. v. Burlington Industrial Alcohol
Co., 9 F. (2d) 289.

54 (U.S.C.C.A.N.Y.) Evidence held to jus- 216(1) (U.S.C.C.A.N.J.) Failure to charge
tify exclusion of alien for physical defects.-U.
S. ex rel. Markin v. Curran. 9 F. (2d) 900.

54 (U.S.D.C.Me.) Period of limitation with-
in which alien may be deported runs from time
of re-entry after temporary absence.-Guimond
v. Howes, 9 F. (2d) 412.

Evidence held to show aliens to be likely to
become public charge, therefore subject to de-
portation. Id.

not considered on appeal where no request was
presented to trial court.-Herman Chemical
Co. v. Burlington Industrial Alcohol Co., 9 F.
(2d) 289.

Exception to charge, not addressed to trial
court, not considered on appeal.-Id.

221 (U.S.C.C.A.N.J.) Question not raised
at trial, by point for instruction or by excep-
tion to charge, not considered on appeal.-Her-

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
man Chemical Co. v. Burlington Industrial Al-
cohol Co., 9 F. (2d) 289.

240 (U.S.C.C.A.Tenn.) Error as to form
of remedy disregarded, in absence of motion_to
dismiss. Elkhart Carriage & Motor Car Co.
v. Partin, 9 F. (2d) 393.

(C) Exceptions.
*mm 263 (1) (U.S.C.C.A.N.J.) Exception to
charge, not addressed to trial court, not con-
sidered on appeal.-Herman Chemical Co. v.
Burlington Industrial Alcohol Co., 9 F.(2d)
289.

263 (3) (U.S.C.C.A.N.J.) Failure to charge
not reviewable where no point was offered.-
Herman Chemical Co. v. Burlington Industrial
Alcohol Co., 9 F. (2d) 289.

VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.
(A) Time of Taking Proceedings.
356 (U.S.C.C.A.N.M.) Writ of error not is-
sued by District Court within six months after
judgment was entered must be dismissed.-
General Motors Acceptance Corporation v.
Lawrence, 9 F. (2d) 64.

VIII. EFFECT OF TRANSFER OF CAUSE
OR PROCEEDINGS THEREFOR.
(A) Powers and Proceedings of Lower

Court.

439 (U.S.C.C.A.N.Y.) Proper procedure to
enable District Court to consider motion to
vacate dismissal, where writ of error is pend-
ing, stated.-Baltimore S. S. Co. v. Phillips, 9
F. (2d) 902.

X. RECORD AND PROCEEDINGS NOT IN

RECORD.

(1) Defects, Objections, Amendment, and
Correction.

655(1) (U.S.C.C.A.Tex.) Motion to strike
out purported printed transcript of record of
lower court held well taken.-Dickson v. Brown,
9 F. (2d) 63.

660 (2) (U.S.C.C.A.Tex.) Want of diligence
in taking action to procure certified transcript
of record of lower court held to preclude re-
lief.-Dickson v. Brown, 9 F. (2d) 63.

(K) Questions Presented for Review.

681 (U.S.C.C.A.Ala.) Overruling of de-
murrer to amended declaration cannot be con-
sidered, where such declaration is not in rec-
ord. Corona Coal Co. v. Robert P. Hyams
Coal Co., 9 F. (2d) 361.

XI. ASSIGNMENT OF ERRORS.
719(10) (U.S.C.C.A.N.Y.) Action of Dis-
trict Court in requesting remittitur, not as-
signed as error, will not be reviewed.-Balti-
more S. S. Co. v. Phillips, 9 F. (2d) 902.

XIII. DISMISSAL, WITHDRAWAL, OR

ABANDONMENT.

776 (U.S.C.C.A.N.Y.) Appellant may al-
ways move to dismiss appeal, and no request is
necessary.-Baltimore S. S. Co. v. Phillips, 9 F.
(2d) 902.

792 (U.S.C.C.A.Cal.) Duty of court to no-
tice, of its own motion, that order is not ap-
pealable.-City and County of San Francisco
v. McLaughlin, 9 F. (2d) 390.

XVI. REVIEW.

(A) Scope and Extent In General.
850(1) (U.S.C.C.A.Tenn.) Alleged errors
in course of trial not reviewable, in absence of
request for special findings.-Elkhart Carriage
& Motor Car Co. v. Partin, 9 F. (2d) 393.

850(2) (U.S.C.C.A.Ohio) Judgment on gen-
eral finding not reviewable on facts and law.-
U. S. v. Gordin, 9 F. (2d) 394.

850(2) (U.S.C.C.A.Pa.) Waiver of jury and
trial by judge makes his findings same as ver-
dict of jury.-Fidelity & Deposit Co. of Mary-
land v. Hay, 9 F. (2d) 749.

866 (3) (U.S.C.C.A.N.Y.) Circuit Court of
Appeals restricted to questions of law present-
ed on review, where both sides moved for di-
rected verdict.-American Merchant Marine Ins.
Co. v. Letton, 9 F. (2d) 799.

(B) Interlocutory, Collateral, and Supple-
mentary Proceedings and Questions.

874 (2) (U.S.C.C.A.Iowa) On appeal from
decree for preliminary injunction, appellate
court ought not to determine questions condi-
tioning merits of case.-City of Council Bluffs
v. Omaha & C. B. St. Ry. Co., 9 F. (2d) 246.

(C) Parties Entitled to Allege Error.

880(1) (U.S.C.C.A.Ala.) Error cannot be
predicated on grant or refusal of new trial,
though granted to one defendant and not to
another.-Illinois Cent. R. Co. v. Horace Tur-
ner Corporation, 9 F. (2d) 6.

882(1) (U.S.C.C.A.N.Y.) Defendant, refus-
ing to go before auditor appointed to determine
damages, in no position to complain.-Globe &
Rutgers Fire Ins. Co. v. Winter Garden Co., 9
F. (2d) 227.

882(11) (U.S.C.C.A.N.M.) Defendants, who
admitted execution of mortgage in answer.
could not contend on appeal there was no proof
of its execution or existence.-Simmons

Stern, 9 F. (2d) 256.

V.

(D) Amendments, Additional Proofs, and
Trial of Cause Anew.

893(2) (U.S.C.C.A.N.M.) An "appeal" in
equity is a trial de novo.-Simmons v. Stern, 9
F. (2d) 256.

(E) Presumptions.

930(1) (U.S.C.C.A.Vt.) Reviewing tribunal
required to assume, on appeal from verdict for
plaintiff, that defendant had broken contract.-
United Const. Co. v. Town of Haverhill, N. H.,
9 F.(2d) 538.

(F) Discretion of Lower Court.

954(1) (U.S.C.C.A.Iowa) Granting of in-
terlocutory injunction within discretion of court
of original jurisdiction, whose action will not
be disturbed, in absence of abuse or violation
or departure from rule of law or principle of
equity.-City of Council Bluffs v. Omaha & C.
B. St. Ry. Co., 9 F. (2d) 246.

966(İ) (U.S.C.C.A.N.Y.) Matter of contin-
uance or postponing case rests in court's dis-
cretion, whose action is reviewable only for
abuse. Dietrich v. U. S. Shipping Board Emer-
gency Fleet Corporation, 9 F. (2d) 733.

977(1) (U.S.C.C.A.Ala.) Error cannot be
predicated on grant or refusal of new trial
which is within sound discretion of trial court.
-Illinois Cent. R. Co. v. Horace Turner Cor-
poration, 9 F. (2d) 6.

977(1) (U.S.C.C.A.Neb.) Error cannot be
assigned on overruling of motion for new trial.
-Cudahy Packing Co. v. Luyben, 9 F. (2d) 32.

(G) Questions of Fact, Verdicts, and
Findings.

997 (3) (U.S.C.C.A.S.C.) Finding on re-
quest by both parties for directed verdict is
final.-Larabee Flour Mills Corporation v. City
Flour & Grain Co., 9 F. (2d) 44.

997 (3) (U.S.C.C.A.W.Va.) Conclusion on
substantial evidence not disturbed, where case
submitted on agreed statement, each party ask-
ing finding and binding instruction in its favor.
-New England Mut. Life Ins. Co. of Boston,
Mass., v. Clinchfield Coal Corporation, 9 F. (2d)
46.

« PreviousContinue »