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charge "and to each and every part thereof," 141 is of no effeet where the charge contains distinct propositions, and any of them is free from objection. So is an exception to "a theory announced throughout" a charge, or throughout an instruction in the same.142 An exception to the refusal of the court to instruct the jury in language prayed for by counsel is of no avail, if the refusal be followed by instructions in the general charge in different language, but substantially to the same effect.143

An exception to a charge or to a refusal to charge is of no avail unless the bill of exceptions shows that it was taken before the jury retired.144 It is too late to take it subsequently

exception, see Winfrey v. Missouri, K. & T. Ry. Co., C. C. A., 194 Fed. 808. It has been held that where the exception to an instruction was based upon a specific ground, the court of review could not consider whether the instruction was erroneous for a different reason. Beiseker v. Moore, C. C. A., 174 Fed. 368. See Horn v. U. S., C. C. A., 182 Fed. 721.

141 Price v. Parkhurst, C. C. A., 53 Fed. 312.

142 Bogk v. Gasser, 149 U. S. 17, 26, 37 L. ed. 631, 635. So was an exception to so much of a paragraph of the charge as assumed a certain state of facts without calling attention to any fact that was omitted from the statement or to any want of proof of a fact therein assumed. U. S. Coal Co. v. Pinkerton, C. C. A., 169 Fed. 536.

143 Anthony v. Louisville & N. R. Co., 132 U. S. 172, 33 L. ed. 301.

144 Phelps v. Mayer, 15 How. 160, 14 L. ed. 643; Pacific Express Co. v. Malin, 132 U. S. 531, 33 L. ed. 450; Gandia v. Pettingill, 222 U. S. 452; Star Co. v. Maddon, C. C. A., 188 Fed. 910; Brent v. Chas. H. Lilly Co., 202 Fed. 335; Copper

River & N. W. Ry. Co. v. Heney, C. C. A., 211 Fed. 459; Barnes & Tucker Coal Co. v. Vozar, C. C. A., 227 Fed. 25; Alverson v. OregonWashington R. & Nav. Co., C. C. A., 236 Fed. 331; Miller & Lux, Inc. v. Petrocelli, C. C. A., 236 Fed. 846, 847; Lohman v. Stockyards Loan Co., C. C. A., 243 Fed. 5; Hunnicut v. United States, C. C. A., 253 Fed. 556. An exception to the direction of a verdict is too late after the verdict has been returned. Bidwell v. George B. Douglas Trading Co., C. C. A., 183 Fed. 93. Although the bill of exceptions states that exceptions to a charge were taken when it was given, they are bad when the bill discloses that they were not taken till afterwards. MacDonald v. U. S., C. C. A., 63 Fed. 426. When the bill of exceptions showed the course of the trial in progressive recitals, immediately following the charge appeared a colloquy, in which the court inquired about exceptions, and in response counsel for the defense stated that he took an exception to a specified part of the charge; further along the record recited that thereupon the jury, after retiring, returned a

by consent of both parties and the court,145 and even when so taken at the court's request.146 An exception may be taken to the court's direction that the exceptions to its charge be taken after the retirement of the jury.147 When a charge is given in the absence of counsel at the jury's request for further instructions is too late for him to except thereto after the verdict; provided at least that the charge was given in the courtroom after such reasonable notice to counsel as is practicable under the circumstances.148 But an exception will lie to a direction by the court that the jury retire before the plaintiff has had an opportunity to take his exceptions to the charge.149 Where the counsel for the unsuccessful party was absent by agreement with his adversary after the jury had retired, it was held that the latter was estopped from objecting that no exception to the supplemental charge was duly taken.150

A statement, that the party who requested the instruction upon its refusal "then and there excepted" is sufficient.151 It has been held that the statement "to which defendant excepted," when following a ruling in what purports to be a narrative report of the trial, is sufficient.152

The material facts or proofs on which the charges to which exceptions were taken rest,153 and enough of the evidence to show that they were erroneous, 154 should be inserted before the charge, in order that the court may see if the points arose

verdict of guilty," it was held: that it sufficiently appeared that the exception in question was taken at the trial, and while the jury were still in the box. Heard v. U. S., C. C. A., 228 Fed. 503.

145 Mann v. Dempster, C. C. A., 181 Fed. 76.

146 Minahan v. Grand Trunk Western Ry. Co., C. C. A., 138 Fed. 37; Dalton v. Moore, C. C. A., 141 Fed. 311; Mann v. Dempster, C. C. A., 181 Fed. 76; Star Co. v. Madden, C. C. A., 188 Fed. 910.

147 Mann v. Dempster, C. C. A., 179 Fed. 837.

148 Stewart v. Wyoming C. R. Co., 128 U. S. 383, 32 L. ed. 439.

149 Fillippon v. Albion Vein Slate Co., 249 U. S. 76; reversing C. C. A., 242 Fed. 258, see supra, § 473g. 150 Grace v. Louisville & N. R. Co., C. C. A., 255 Fed. 843.

151 Kellogg v. Forsyth, 2 Black, 571, 17 L. ed. 256.

152 New Orleans & N. E. Ry. Co. v. Jopes, 142 U. S. 18, 35 L. ed. 919.

153 Baltimore & P. R. Co. v. Trustees of Sixth Pres. Church, 91 U. S. 127, 23 L. ed. 260.

154 Young v. Martin, 8 Wall. 354, 19 L. ed. 418.

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on which they were given and as to which exception was taken. The part of the charge to which the exception was taken must be inserted in full,155 with enough of the rest to show that it was not qualified.156 In a civil case, the omission of the court to charge on a material question of law is not the subject of an exception when no request for such charge was made on the trial.157

If the party asking the charge is dissatisfied with the court's refusal, he may except thereto, which exception will avail him if he shows that the request was warranted by the testimony, and that the charge he asked ought to have been given.158 If the judge proceeds to state the law, and states it erroneously, an exception will lie to his ruling, and if it could have had any influence on the jury, the verdict will be set aside.159

Where a party, after an exception, instead of standing upon it, by an amendment or otherwise withdraws from the position that the court held to be erroneous, it may be held that he has waived his right to review the question upon a writ of error.160 Where a defendant, after an exception to a refusal to direct a verdict in his favor at the end of the plaintiff's case, offers evidence in support of his defense, he waives such prior exception.161

§ 480. Judgments. It has been held in actions for joint torts, that judgments may be entered in favor of some and against others, if the jury so find in their verdict, but separate judgments for different amounts cannot be entered against different defendants 2 except by consent.3

155 Stimpson v. West Chester R. Co., 3 How. 553, 11 L. ed. 722.

156 Hicks v. U. S., 150 U. S. 443, 453, 37 L. ed. 1137, 1142.

157 Texas & P. Ry. Co. v. Volk, 151
U. S. 73, 38 L. ed. 78.

158 Etting v. Bank of U. S., 11
Wheat. 59, 75, 6 L. ed. 419, 422,
Cf. Hudson v. Charleston, C. & C.
R. Co., 55 Fed. 252.

159 Etting v. Bank of U. S., 11
Wheat. 59, 75, 6 L. ed. 419, 422.
160 Campbell v. Haberhill, 155 U.
S. 610, 612, 39 L. ed. 280, 281.

161 Grand Trunk Ry. Co. v. Cum

mings, 106 U. S. 700, 27 L. ed. 266; Accident Ins. Co. v. Crandal, 120 U. S. 527, 30 L. ed. 740.

§ 480. 1 Chaffee & Co. v. U. S., 18 Wall. 516, 21 L. ed. 908; Sawin v. Kenney, 93 U. S. 289, 23 L. ed. 926; Sessions v. Johnson, 95 U. S. 347, 24 L. ed. 596; Insurance Co. v. Boykin, 12 Wall. 433, 20 L. ed. 442; Chils v. Gronlund, 41 Fed. 505.

2 Chils v. Gronlund, 41 Fed. 505. 3 Insurance Co. v. Boykin, 12 Wall. 433, 20 L. ed. 442. But see Lovejoy v. Murray, 3 Wall. 1, 11, 18 L. ed. 129, 132.

It has been held that, in a joint action against two or more railroad companies to recover a penalty for the violation of the safety appliance act, there may be a verdict and judgment in accordance with the proofs, against all or any of the defendWhen separate judgments are entered against several are jointly liable, there can be but one collection of the damages awarded; but there may be a collection of costs from each defendant.6

ants.

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judgment in favor of one or more joint contractors has held no bar to a suit against another, who was neither served with process nor appeared in the action in which the judgment was rendered.7

Where the winner refuses to enter judgment, the unsuccessful party may do so in order that it may be reviewed by writ of error.8

At least, in the absence, of a State statute or rule of court upon the subject, it seems that judgment cannot be entered by the judgment creditor, subsequent to the trial term, unless it is entered nunc pro tunc.10 But where a motion for judgment has been granted during vacation a judgment may be entered at the ensuing term, 11 a court rule providing, where there is a failure to enter a judgment on a verdict it shall be considered as entered upon the last day of the term, applies only to a verdict which is sufficient to support a judgment.

The Federal Courts cannot follow a State statute which authorizes the entry of judgment upon the evidence non obstante veredicto.12

A court rule providing that, where there is a failure to enter judgment on a verdict, it shall be considered as entered upon the last day of the term, applies only to a verdict which is sufficient to support a judgment.13

27

4 Act of March 2, 1893, ch. 196, St. at L. 531.

5 U. S. v. Chicago, P. & St. L.

Ry. Co., 143 Fed. 353.

6 U. S. v. New York Cent. & H.

R. R. Co., 221 Fed. 1000.

7 Larison v. Hager, 44 Fed. 49. 8 Re Watts, C. C. A., 214 Fed. 80. 9 Pressed Steel Car Co. v. Steel Car Forge Co., C. C. A., 149 Fed. 182.

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Where a plaintiff has recovered a verdict for more than the amount sufficient to warrant a review by writ of error, he may by leave of the court file before judgment a remittitur of part of such verdict and enter judgment for an amount less than that required for a review by writ of error.14 In such a case, no writ of error will issue to the judgment where the jurisdiction of the court of review depends upon the matter in dispute.15 After judgment a plaintiff cannot, by a release of part of the judgment, deprive his adversary of the right to a writ of error, 16 except by special leave of the court, which may allow him to file a remittitur nunc pro tunc, and amend the judgment accordingly, before a writ of error has been allowed.17

A judgment may be entered for the recovery of a specified amount "with costs to be taxed," 18 or a specified amount as damages, together with costs, leaving a blank space into which the costs are to be written by the clerk.19

An entry in the "minute book" is not judgment.20 An en

14 Thompson v. Butler, 95 U. S. 694, 24 L. ed. 540; Alabama Gold L. Ins. Co. v. Nichols, 109 U. S. 232, 27 L. ed. 915; First Nat. Bank v. Redick, 110 U. S. 224, 28 L. ed. 124; Pacific Exp. Co. v. Malin, 132 U. S. 531, 33 L. ed. 450.

15 Thompson v. Butler, 95 U. S. 694, 24 L. ed. 540; Alabama Gold L. Ins. Co. v. Nichols, 109 U. S. 232, 27 L. ed. 915; First Nat. Bank v. Redick, 110 U. S. 224, 28 L. ed. 124; Pac. Express Co. v. Malin, 132 U. S. 531, 33 L. ed. 450.

An entry in the clerk's minutes that the plaintiff consented to the reduction of a verdict is sufficient evidence thereof; and in such a case, after the reduced amount has been paid and satisfaction of the judgment given, the court will not set aside the transaction on the ground that it had improperly compelled the plaintiff to consent as a condition of a denial of the motion to set the verdict aside as

excessive. Lewis v. Wilson, 151 U. S. 551, 38 L. ed. 267. Where the plaintiff had sued for the benefit of others besides herself, it was held that so much of a remittitur filed by her as affected the others' share in the verdict was absolutely void. Southern Pac. Co. v. Tomlinson, 163 U. S. 369, 41 L. ed. 193. An omission of allegations of citizenship essential to the jurisdiction cannot be cured by their insertion in a remittitur. Denny v. Pironi, 141 U. S. 121, 35 L. ed. 657.

16 N. Y. El. R. Co. v. Fifth Nat. Bank, 118 U. S. 608, 30 L. ed. 359. 17 Pacific Exp. Co. v. Malin, 132 U. S. 531, 33 L. ed. 450.

18 Prescott & Arizona Central R. Co. v. Atchison, T. & S. F. R. Co., C. C. A., 84 Fed. 213.

19 Sizer. Many, 16 How. 98, 14 L. ed. 861, supra, § 423.

20 Denny v. Giles, C. C. A., 250 Fed. 987.

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