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the constitutionality of a statute.2 A judgment or decree will be reversed for want of jurisdiction below, by the appellate court of its own motion, although the objection is not raised by the parties below or above. When a new trial is directed, the

after the trial, Brockett v. Brockett, 3 How. 691, 11 L. ed. 786; McLaughlin v. Bank of Potomac, 7 How. 220, 12 L. ed. 675. The fact that the sufficiency of the evidence to support the verdict was passed upon by the court below on a motion for a new trial will not authorize a review of its action on a writ of error. City of Lincoln v. Sun V. S. L. Co., C. C. A., 59 Fed. 756. A verdict for defendants, when but one defendant appeared and defended, and the others were formal parties, was held to be a clerical error which was no ground for a reversal upon a writ of error, when no motion to correct it was made at the time. Shattuck v. No. Br. L. & Mer. Ins. Co., C. C. A., 58 Fed. 609. Nor because receivership proceedings were pending in a Federal Court sitting in another State. Wetzel & T. Ry. Co. v. Tennis Bros. Co., C. C. A., 145 Fed. 458. That there was no disposition of a cross bill. Carson v. Hurt, C. C. A., 250 Fed. 30.

That the form of the decree was erroneous when no rights were thereby prejudiced. Peace v. RathbunJones Eng. Co., 243 U. S. 273. As to objection to the admission of evidence, see supra, § 711e.

2 Southern Ry. Co. v. King, 169 Fed. 332; Brothers v. Cunningham, C. C. A., 189 Fed. 884. But see Weems v. U. S., 217 U. S. 349, 54 L. ed. 793, cited supra, § 701. It was so held of an omission to refer to a State statute a violation of which it was contended for the first time

upon writ of error constituted contributory negligence. Federal Mining & Smelting Co. v. Hodge, C. C. A., 213 Fed. 605.

3 Grace v. American Cent. Ins. Co., 109 U. S. 278, 27 L. ed. 932; Bors v. Preston, 111 U. S. 252, 28 L. ed. 419; Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co., 116 U. S. 472, 29 L. ed. 696; Fore River Shipbuilding Co. v. Hagg, 219 U. S. 175; Puget Sound Navigation Co. v. Lavendar, C. C. A., 156 Fed. 361; Royal Ins. Co. of Liverpool, Eng., v. Stoddard, C. C. A., 201 Fed. 915; Farmers' Oil & Guano Co. v. Duckworth Co., C. C. A., 217 Fed. 362; Empire City Fire Ins. Co. v. American Cent. Ins. Co., C. C. A., 218 Fed. 774; Thomas v. Anderson, C. C. A., 223 Fed. 41; Spencer v. Patey, C. C. A., 243 Fed. 558; Supreme Council of Royal Arcanum v. Hobart, C. C. A., 244 Fed. 385; Devost v. Twin State Gas & Electric Co., C. C. A., 250 Fed. 349. Such an objection may be assigned or raised by the party at whose suggestion the error was committed. Devost V. Twin State Gas & El. Co., C. C. A., 240 Fed. 349. Where the court had jurisdiction of the parties and of the subject matter of the litigation, the party who asked for an amendment changing the nature of the suit was not permitted to raise the ob jection that there was no power to grant his application. Mercelis v. Wilson, 235 U. S. 579. When the point was not taken below, the court of review will usually disregard the

court of review may, for the instruction of the lower court, decide questions material to the case which have not been pre

motion, that equitable relief has been granted in an action at common law. Louisville & Nashville R. R. Co. v. Cook Brewing Co., 223 U. S. 70, 56 L. ed. 355; Cook v. Foley, C. C. A., 152 Fed. 41; U. S. v. Illinois Surety Co., C. C. A., 226 Fed. 653; or a suit in equity maintained where the remedy at law was adequate. Wylie v. Coxe, 15 How. 415, 14 L. ed. 753; Crosby v. Buchanan, 23 Wall. 420, 23 L. ed. 138; Reynes v. Dumont, 130 U. S. 354, 32 L. ed. 934; supra, §§ 365, 453; McCloskey v. Pacific Coast Co., C. C. A., 22 L.R.A. (N.S.) 673, 160 Fed. 794; Hattiesburg Lumber Co. v. Herrick, C. C. A., 212 Fed. 835; El Dora Oil Co. v. U. S., C. C. A., 229 Fed. 946; Babcock & Wilcox v. Am. Surety Co., C. C. A., 236 Fed. 340; Equitable Trust Co. v. Western Pac. Ry. Co., C. C. A., 250 Fed. 327; Cone Mfg. Co. v. Bruckman, C. C. A., 255 Fed. 957; Becker-Franz Co. v. Shannon Copper Co., C. C. A., 256 Fed. 522. But see Street Grading District No. 60 v. Hagadorn, C. C. A., 186 Fed. 451; although the court may of its own motion transfer a case to either docket at any stage of the proceedings; and it has the power in such a case to reverse a decree for the latter reason. Lewis v. Cocks, 23 Wall. 466, 23 L. ed. 70; Oelrichs v. Spain, 15 Wall. 211, 21 L. ed. 43; Reynes v. Dumont, 130 U. S. 354, 395, 32 L. ed. 934, 945; Allen v. Pullman's P. C. Co., 139 U. S. 658, 35 L. ed. 303. Chicago, Burlington & Quincy Ry. Co. v. Willard, 220 U. S. 413, 55 L. ed. 521; McGilvra v. Ross, C. C. A., 164 Fed. 604; Newcomb v. Burbank, C. C. A., 181 Fed.

334; Atlantic Coast Line R. Co. v. Whilden, C. C. A., 195 Fed. 263. But see Williams v. Molther, C. C. A., 198 Fed. 460, supra, §§ 365, 376, 377, 453. Where this objection was raised below, it may be considered in the court of review. Singer Sewing Mach. Co. v. Benedict, C. C. A., 179 Fed. 628. The Supreme Court refused to reverse a judgment because the judge refused to allow a plea concerning the citizenship of the plaintiff to be filed during the trial. Mexican C. Ry. Co. v. Pinkney, 149 U. S. 194, 37 L. ed. 699. The assumption by the court of jurisdiction in another case, where the question was not raised, is not controlling subsequently when the point is brought to its attention. Tefft, Weller & Co. v. Munsuri, 222 U. S. 114, 56 L. ed. 118. Arant v. Lane, 245 U. S. 167. It has been said that where the plaintiff's pleading showed the jurisdiction and there is a general denial, the point cannot be raised above, unless there was affirmative proof or the question was specifically brought to the attention of the court below. Pike County, Pa. v. Spencer, C. C. A., 192 Fed. 11. In one case the Supreme Court refused to affirm a judgment "upon a jurisdictional ground not passed upon by the Circuit Court,'' when of the opinion that the Circuit Court decided the case below upon an erroneous ground which might prejudice the plaintiff in error in subsequent litigation; and consequently reversed the judgment. Scott V. Armstrong, 146 U. S. 499, 512, 36 L. ed. 1059. The Supreme Court reversed a judgment because the case

viously presented. Where the decision below was based upon a statute which had been repealed, it will be reversed although the repeal was not brought to the attention of the inferior court." So when the judgment is in violation of an Act of Congress forbidding such a contract as it enforces. Where an indispensable party to a suit in equity has been omitted, the decision may be reversed although the objection was not taken below." Where the error appears upon the pleadings in equity, or upon the record at common law, and would have been fatal on a motion in arrest of judgment, or on a general demurrer, it is equally fatal upon a writ of error although not raised below.9a An appellant may claim relief upon a different theory from that on which he relied below, provided that the pleadings are sufficiently

was tried below by both parties under a mutual mistake of law. Murdock v. Ward, 178 U. S. 139, 44 L. ed. 1009.

4 Guaranty Tr. Co. of N. Y. v. Koeler, C. C. A., 195 Fed. 669.

5 Fourth Nat. Bank v. Francklyn, 120 U. S. 747, 751, 30 L. ed. 825, 827.

6 Newman v. Moyers, 253 U. S. 182; supra, §§ 701, 707.

7 Coiron v. Millaudon, 19 How. 113, 15 L. ed. 575; Hoe v. Wilson, 9 Wall. 501, 19 L. ed. 762. See supra, §§ 120, 129.

V.

8 Nat. Bank of Commerce Rockefeller, C. C. A., 174 Fed. 22. 9 Slacum v. Pomery, 6 Cranch, 221, 3 L. ed. 205; Garland v. Davis, 4 How. 131, 11 L. ed. 907; McAllister v. Kuhn, 96 U. S. 87, 24 L. ed. 615; Cragin v. Lovell, 109 U. S. 194, 27 L. ed. 903; Coffey v. U. S., 116 U. S. 436, 29 L. ed. 684; Griggs v. Nadeau, 221 Fed. 381; Mound Coal Co. v. Jeffrey Mfg. Co., C. C. A., 233 Fed. 913. Such have been held to be an omission to allege notice of protest in a declaration against an indorser, Slacum v. Pomery, 6 Cranch, 221, 3 L. ed. 204, (where

counsel did not suggest the point to the Supreme Court); the failure to show that the plaintiff had a title to the cause of action upon which he sued. Sterrett v. Second Nat. Bank, C. C. A., 246 Fed. 753. The sustaining of a plea of non assumpsit to a declaration in tort, Garland v. Davis, 4 How. 131, 11 L. ed. 907. Where there was a combination of errors of a grave character, including the filing of an amended bill after issue without leave of court; a reference to an auditor which was not revoked nor apparently terminated before the final decree; a failure to file a replication to either of the answers; and a petition "by way of crossbill," naming no defendants, seeking no process, and upon which no process was issued, but upon which the final decree was based,-the Supreme Court reversed the decree although no objection on any of these grounds was raised below. Washington R. Co. v. Bradleys, 10 Wall. 299, 19 L. ed. 894.

9a Wiggins Ferry Co. v. Ohio & Miss. Ry. Co., 142 U. S. 396, 35 L. ed. 1055; McCloskey V. Pacific Coast Co., 160 Fed. 794. But see

11

broad to support this 10 unless his adversary has lost an opportunity to present evidence to meet the new contention or the right to relief upon such other ground has been waived.12 Where the existence of a certain fact is assumed in the trial court and the trial proceeds upon such assumption without objection, neither party may question the existence thereof in the court of review.18

It has not yet been decided to what extent this doctrine has been modified by the act of February 26, 1919, authorizing the court to "give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the party." 14

Hatcher v. Northwestern Nat. Ins. Co. v. Milwaukee, Wisc., C. C. A., 184 Fed. 23.

Where the verdict for defendant who set up two defenses might have been given under either, plaintiff, on writ of error to review the judgment thereupon was allowed to raise legal rulings relevant to either defense. Buckeye Powder Co. v. V. E. I. Du Pont De Memours P. Co., C. C. A., 223 Fed. 881.

10 Wiggins Ferry Co. v. Ohio & Miss. Ry Co., 142 U. S. 396, 35 L. ed. 1055; McCloskey v. Pacific Coast Co., 160 Fed. 794. But see Hatcher v. Northwestern Nat. Ins. Co. v. Milwaukee, Wisc., C. C. A., 184 Fed. 23.

11 Illinois Cent. R. Co. v. Egan, C. C. A., 203 Fed. 937.

12 Illinois Cent. R. Co. v. Egan, C. C. A., 203 Fed. 937; U. S. v. Kettenbach, C. C. A., 208 Fed. 209; Kennelly v. Frederick Starr Contracting Co., C. C. A., 250 Fed. 229.

18 Southern Cotton Oil Co. V. Shelton, C. C. A., 220 Fed. 247.

14 Ch. 48, 40 St. at L. 1181, Comp. St. § 1246, amending Judicial Code, § 269. See supra, § 536a, infra,

§ 711j. It seems that in criminal cases this justifies a reversal because of flagrant errors in a charge to which no exceptions was taken upon the trial, Stokes v. U. S., C. C. A., 264 Fed. 18. And even because of prejudicial remarks by the prosecuting attorney to which no objection nor exception was then taken, Smith v. U. S., C. C. A., 231 Fed. 25; August v. U. S., C. C. A., 257 Fed. 388, 392, a most extraordinary decision. See supra, §§ 4731, 527a, 536a. It has been held by a divided court that this does not authorize the review of proceedings upon the trial without a bill of exceptions upon the review of a judgment at common law although the return contains a transcript of the stenographer's minutes accompanied by a stipulation that this is a part of the record and by a certification of the clerk that the transcript is "a correct and complete transcript of the record.'' Buessel v. U. S., C. C. A., 258 Fed. 811. Cf. supra, § 479. Nor does it authorize a review of the whole case irrespective of exceptions. Storgard v. France & Canada S. S. Corporation, C. C. A., 263 Fed. 545.

§ 711h. Consideration of matter subsequent to proceedings brought up for review. A law passed after a judgment in the inferior court, which changes the rule governing the case, if constitutional, must be followed by the court of review. Where the act authorizing an appeal is repealed pending an appeal, the appellate court loses jurisdiction of the appeal, unless the jurisdiction over pending appeals is reserved in the repealing act.2 Where, pending a writ of error from a judgment entered upon a plea of res adjudicata by a former judgment between the same parties, such former judgment was reversed; the Supreme Court reversed the second. When by subsequent events the controversy between the judgment 3 parties has been settled or the questions

Nor allow a party in the court of review to assign another reason for his objection to a charge than that stated to the court below. Standard Oil Co. v. Allen, C. C. A., 267 Fed. 645. Nor authorize the review of a judgment or decree which was previously not appealable, Rumsey v. N. Y. Life Ins. Co., C. C. A., 267 Fed. 554; see supra, § 701. Formerly the well established rule was that a judgment could not be reversed because of erroneous instructions to the jury when no exception was taken to them at the time; Castle v. Bullard, 33 How. 172, 16 L. ed. 424; Burton v. West Jersey Ferry Co., 114 U. S. 474, 29 L. ed. 215; Seaboard Air Line v. Renn, 241 U. S. 290; Yazoo & M. V. R. Co. v. Wright, C. C. A., 207 Fed. 281; Lane v. Leiter, C. C. A., 237 Fed. 149; Examiner Printing Co. V. Aston, C. C. A., 238 Fed. 459; Am. Locomotive Co. v. Harris, C. C. A., 239 Fed. 234; Pennsylvania R. Co. v. Minds, C. C. A., 243 Fed. 53; Campbell v. Krauss, C. C. A., 249 Fed. 670; supra, §§ 473j, 479, 527b, 527d, 536a.

§ 711h. 1 U. S. v. The Peggy, 1 Cranch, 103, 2 L. ed. 49; Yeaton v.

U. S., 5 Cranch, 281, 3 L. ed. 101; Kansas Pac. R. Co. v. Twombly, 100 U. S. 78, 25 L. ed. 550. Where, after a decree adjoining the execution of a statute, the statute was repealed, the appeal was dismissed. Flour Inspectors v. Glover, 160 U. S. 170, 40 L. ed. 382. But see Leathe v. Thomas, C. C. A., 97 Fed. 136. In a case where, after a sentence of condemnation, the sale of a vessel thereunder, and the payment of the proceeds to the United States, the act upon which the condemnation proceedings were based expired; the Supreme Court reversed the decree, and made a general order for the restitution of the property condemned, stating that the question whether the proceeds of the property should be paid over to the claimants was a matter to be left to the consideration of the court below." The Rachel v. U. S., 6 Cranch, 329, 330, 3 L. ed. 239.

2 Baltimore & P. R. Co. v. Grant, 98 U. S. 398, 25 L. ed. 231; Ex parte McCardle, 7 Wall. 506, 19 L. ed. 264.

3 Butler v. Eaton, 141 U. S. 240, 35 L. ed. 713. Supra, § 692c. Where, pending an appeal from a decree on a creditor's bill founded upon a

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