petition and motion that the court, sitting as a court of chan-
cery, make findings and enter decree, notwithstanding advi-
sory verdict of the jury, which is in the words and figures
following, to-wit:
Comes now the Union Pacific Railroad Company, the de-
fendant above named, by its attorneys and, deeming that all
issues both of law and of fact presented by or arising in
connection with that portion of the plaintiff's reply, herein
designated as subdivision IV, being "with reference to the
allegations contained in the fifth affirmative defense" of the
defendant's answer, are purely of equitable cognizance and
triable solely by the court sitting as a court of chancery prior
to and separate from the trial by the court and a jury, of all
the other issues arising upon and under the pleadings herein,
hereby respectfully petitions and requests the court as follows,
to-wit : [Each request to be deemed, considered and dealt with
by the court as a separate and several request, and not joint
with the others.]
1. That the court, sitting as a court of chancery, notwith-
standing the advisory verdict of the jury heretofore returned
herein, now find, determine and decree that the said instru-
ment of release pleaded and set forth in the fifth affirma-
tive of defendant's answer, is an existent, valid and enforcible
contract and bars plaintiff's right of recovery herein.
2. That the court, sitting as a court of chancery, notwith-
standing the advisory verdict of the jury heretofore returned
296 SUITS AT LAW
herein, find, determine and decree as a matter of fact and of
law, that the allegations in that portion of the plaintiff's reply
above referred to, by reason of which the plaintiff seeks to
set aside, cancel and annul said release, have not been sus-
tained by the proof and that said release must stand as a
valid, existent and enforcible contract, barring any right upon
the part of the plaintiff to recovery herein.
3. That the court, sitting as a court of chancery, notwith-
standing the advisory verdict of the jury heretofore returned
herein, find, determine and decree that the plaintiff did not,
in apt time and as required by law, pay back or return, or
tender or offer to pay back or return to the defendant the
consideration theretofore received by him at the time of the
execution of the said release, and that therefore the attempt
of the' plaintiff to set aside, cancel and annul said release
must fail.
4. That the court, sitting as a court of chancery, notwith-
standing the advisory verdict of the jury heretofore returned
herein, find, determine and decree that there was an absolute
failure of proof upon the part of the plaintiff of any artifice
or fraud upon the part or on behalf of the defendant, con-
cealing or tending to conceal the terms of said contract of
release, prior to its execution by the plaintiff or which pre-
vented the plaintiff from reading said release prior to or at.
the time of its execution by him.
5. That the court, sitting as a court of chancery, notwith-
standing the advisory verdict of the jury heretofore returned
herein, find, determine and decree that no representations,
promises or agreements made, or opinions expressed in the
previous parol negotiations between and on behalf of the plain-
tiff and of the defendant, as to the terms or legal effect of
the resulting written contract of release, can be permitted to
prevail, either at law or in equity, over the plain provisions
and just interpretation of said contract of release, in the ab-
sence of some artifice, or fraud which concealed its terms or
prevented plaintiff from reading it; that there is an absolute
PROCESS, MOTIONS, JUDGMENT, ETC. 297
failure of proof upon the part of the plaintiff of any such
artifice or fraud which concealed or tended to conceal the terms
of said contract of release prior to its execution by the plain-
tiff, or which prevented the plaintiff from reading said release ;
and that therefore, said release stands and must be held to be
a valid, existent and enforcible contract barring any right
of recovery by the plaintiff herein.
6. That the court, sitting as a court of chancery, notwith-
standing the advisory verdict of the jury heretofore returned
herein, find, determine and decree that none of the represen-
tations or promises made, or opinions expressed in the pre-
vious parol ngotiations by defendant's claim agent, White,
as testified to by and on behalf of the plaintiff, even if be-
lieved and found by the court to have been established by
clear, convincing and unequivocal testimony, notwithstanding
the making of said representations or promises or the ex-
pressing of said opinions was earnestly and vigorously denied
by said White and by the defendant's witness, Lucas, who,
it was admitted by the plaintiff, was present when said repre-
sentations and promises so claimed to have been made were
made and said opinions expressed, can not in law or equity
constitute fraudulent representations warranting or justifying
the setting aside, cancelling and annulling of said release.
7. That the court, sitting as a court of chancery, notwith-
standing the advisory verdict of the jury heretofore returned
herein, find, determine and decree that said contract of re-
lease was actually executed by the plaintiff; that in considera-
tion therefor defendant paid plaintiff and plaintiff received
and retained -a substantial sum of money, to-wit, seven hun-
dred fifty dollars ($750.00) ; that prior to the execution of
said release by plaintiff, said release was read by the plain-
tiff, or read to the plaintiff, by plaintiff's representative and
agent, Mrs. Katie Hoffman; that plaintiff was in no manner
hindered or prevented by defendant from reading or having
read to him and fully understanding said contract of release
298 SUITS AT LAW
and all of its terms prior to the execution thereof, and that
said release is an absolute bar to any right of recovery by
plaintiff in this action.
(Signed) HUGHES & DORSEY,
JOHN Q. DIER,
Attorneys for Defendant.
No. 226.
Judgment for Plaintiff upon Sustaining Demurrer to
Answer (1).
This day this cause came on to be heard upon the demurrer
of the plaintiff to the answer of the defendant, and was argued
by counsel, and the court being fully advised in the premises,
is of the opinion and does hereby order that said demurrer
be, and the same hereby is, sustained, to which ruling of the
court said defendant, by its counsel, excepts.
And thereupon said defendants, not asking to plead further,
it is considered and adjudged by the court that the said plain-
tiff, The A. B. Banking Company, recover against the said
defendant, The City of , said sum of - dollars and
cents, the amount claimed in the petition, with interest
computed up to , the first day of the present term of this
court, together with its costs herein expended taxed at $ ,
and that said defendant pay its own costs.
(1) It is not necessary or proper to except to judgment.
No. 227.
Remittitur (1)
[Caption.']
Now comes the plaintiff in the above entitled action within
thirty days from the order of the honorable court, and remits
PROCESS, MOTIONS, JUDGMENT, ETC. 299
all damages in the above entitled cause in excess of three
thousand dollars.
By her Attorneys,
ASA P. FRENCH,
DANIEL A. SHEA.
(1) See Foster's Federal Practice, 5th ed., page 1601.
No. 228.
Plaintiff, a Minor, by His Testamentary Guardian, Consents
to Reduction of Assessed Damages.
[Caption.]
The court having expressed the opinion that the damages
assessed by the jury in the above entitled action, to-wit, twenty-
seven thousand five hundred dollars ($27,500.00), are exces-
sive, and having offered to the plaintiff the choice of remitting
the sum of seventeen thousand five hundred dollars ($17,-
500.00) of said assessment of damages, or of submitting to
an order of the court granting a new trial in said cause, the
plaintiff, upon the said suggestion of the court, comes into
court in his own person, and by his guardian and attorneys,
and remits of record the sum of seventeen thousand five hun-
dred dollars ($17,500.00) of said verdict, and consents that
the same may be for the sum of ten thousand dollars ($10,-
000.00), and to accept judgment for the same.
J. C. PRITCHARD,
Circuit Judge.
No. 229.
Order Denying Motion for a New Trial where Verdict
Reduced.
[Caption.]
The above entitled action having regularly come on for
trial before Hon. Thomas I. Chatfield, district judge, and a
jury on the 30th day of March, 1914, and the issues having
300 SUITS AT LAW
been tried, and the jury having, on the 4th day of April, 1914,
rendered a verdict upon the merits in favor of the plaintiff
and against the defendant for the sum of fifty thousand
dollars ($50,000), and the defendant having immediately after
the rendition of the said verdict, moved to set the same aside
upon the ground, among others, that it was excessive, and
the court having entertained the said motion and having there-
after, and after due deliberation, rendered its decision in writ-
ing reducing the said verdict to the sum of thirty-six thou-
sand dollars ($36,000) and directing that if the plaintiff
agrees and consents to the said reduction, then in all other
respects and upon all other grounds, the said motion be de-
nied; and an order having thereupon and on the 8th day of
May, 1914, been made requiring the plaintiff through his
attorney to file on or before May 12, 1914, with the clerk
of this court, his consent in writing that the said verdict shall
be reduced to the sum of thirty-six thousand dollars ($36,000),
or otherwise to move with respect to the verdict for the
amount in excess of that sum : and the plaintiff having there-
after and on the 9th day of May, 1914, through his attorney,
filed with the clerk of this- court his consent in writing to
the reduction of said verdict to the sum of thirty-six thousand
dollars ($36,000) ; now, upon motion of Baltrus S. Yankaus,
attorney for the plaintiff, it is:
Ordered, that the said motion be, and the same hereby is
in all other respects denied.
THOMAS I. CHATFIELD,
United States District Judge.
No. 230.
Alternative Order Reducing Verdict.
[Caption,]
The above entitled action having come on regularly for
trial in this court, upon the 30th day of March, 1914, before
the Honorable Thomas I. Chatfield, judge, and a jury, and
PROCESS, MOTIONS, JUDGMENTS, ETC. 301
the jury having, on the 4th clay of April, 1914, rendered a
verdict in favor of the plaintiff, Matt Yurkonis, and against
the defendant, The Delaware, Lackawanna and Western Rail-
road Company, in the sum of fifty thousand dollars ($50,-
000.00), and a motion having been made by the defendant,
upon the return of said verdict, to set the same aside on the
ground, among others, that it was excessive, and that the said
motion having been duly heard, and after hearing F. W.
Thomson, one of the defendant's attorneys, in support thereof,
and Baltrus S. Yankaus, Esq., attorney for plaintiff, and
Thomas J. O'Neill, Esq., of counsel for plaintiff, in opposition
thereto, and due deliberation having been had thereon, it is :
Ordered, that the plaintiff, through his attorney, Baltrus S.
Yankaus, Esq., file on or before May 12, 1914, with the clerk
of this court, his consent in writing that the said verdict
shall be reduced to the sum of thirty-six thousand dollars
($36,000), or make some application with respect to the ver-
dict for the amount in excess of that sum.
Enter, THOMAS I. CHATFIELD,
Judge of the United States District Court.
Filed and entered May 8, 1914.
No. 231.
Judgment on Reduced Verdict.
[Caption.]
The above entitled action having been regularly reached
for trial before Honorable Thomas I. Chatfield, district judge,
and a jury on the 30th day of March, 1914, and the issues
having been tried, and the jury having on the 4th day of
April, 1914, rendered a verdict upon the merits in favor of
the plaintiff and against the defendant for the sum of fifty
thousand dollars ($50,000.00) ; and the court having there-
after reduced the said verdict to the sum of thirty-six thou-
sand dollars ($36,000.00), and the plaintiff having in writing
302 SUITS AT LAW.
consented to such reduction ; and the costs and disbursements
of the plaintiff having been duly taxed by the clerk of this
court at the sum of ninety-nine and 80/100 dollars; it is on
motion of Baltrus S. Yankaus, attorney for the plaintiff,
Ordered and adjudged that the plaintiff, Matt Yurkonis,
do recover of and from the defendant, The Delaware, Lacka-
wanna & Western Railroad Company, the sum of thirty-six
thousand dollars ($36,000.00) damages, together with the sum
of ninety-nine and 80/100 dollars costs, amounting in the
aggregate to the sum of thirty-six thousand and ninety-nine
and 80/100 dollars, and that plaintiff have execution therefor.
Judgment signed, entered and filed, this , day of - ,
1917. A. B.,
Clerk.
No. 232.
(Another form.)
Judgment on Reduced Verdict.
[Caption.]
This cause coming on to be heard before his Honor, J. C.
Pritchard, circuit judge, and a jury in the district court held
at Asheville, in the state of North Carolina, and having been
heard, the plaintiff at the close of the testimony took a nol.
pros, as to the defendants, The Western North Carolina Rail-
road Company and Luther F. Long.
The following issues were submitted to the jury:
I. "Was the plaintiff by the negligence of the defendant
railway company, as alleged in the complaint?"
II. "Did the plaintiff, Ernest Thomason, by his own negli-
gence contribute to his injury, as alleged in the answer?"
III. "What damage, if any, is the plaintiff, Ernest Thom-
ason, entitled to recover?"
And the jury having answered all of the issues in favor of
the plaintiff; that is to say, having answered the first issue
"Yes," the second issue "No," and having answered the third
PROCESS, MOTIONS, JUDGMENTS, ETC. 303
issue twenty-seven thousand five hundred dollars, and having
assessed the plaintiff's damages at that amount, and his honor,
Judge Pritchard, having expressed the opinion that the amount
of said damages, so assessed in favor of the plaintiff, is exces-
sive, and the plaintiff having remitted of record seventeen
thousand five hundred dollars of the amount of said verdict,
whereby the said verdict was reduced to the sum of ten thou-
sand dollars:
It is now, on motion of James H. Merrimon and Locke
Craig, attorneys for the plaintiff, ordered and adjudged and
decreed that the plaintiff, Ernest Thomason, have and recover
of the defendant, the Southern Railway Company, the sum
of ten thousand dollars, with interest thereon from the
day of September, 19 , together with the costs of this cause,
to be taxed by the clerk.
J. C. PRITCHARD,
Circuit Judge.
No. 233.
(Another form.)
Judgment for Plaintiff upon Remitting Part of Verdict.
[Caption.]
This cause having come on to be heard before the Hon. C.
D., district judge, upon the motion for a new trial heretofore
made, and the briefs of attorneys for both sides relative there-
to, and after due consideration thereof the court is pleased
to overrule the said motion for a new trial upon all the
grounds therein contained, except that of excessive verdict,
and upon this ground, upon plaintiff's entering a remittitur of
- dollars, making the judgment of the court stand at
dollars, the court is pleased to overrule the motion for a new
trial upon that ground also.
Thereupon came the attorneys for plaintiff and enter a
remittitur of dollars as hereinbefore suggested.
304 SUITS AT LAW.
It is therefore considered by the court that defendant's mo-
tion for a new trial herein be overruled and for nothing held,
and that the plaintiff recover of the defendant the sum of
dollars and the costs of this cause, for wtiich let execu-
tion issue.
No. 334.
Judgment for Plaintiff, Overruling Motion for New Trial and
Settling Bill of Exceptions.
[Caption.']
This day this cause was heard upon the motion of the said
defendant, for an order setting aside the verdict heretofore
rendered herein and for a new trial hereof, and was argued
by counsel.
On consideration whereof, the court being fully advised
in the premises, doth find that said motion is not well taken
and should be overruled, and that a judgment should be ren-
dered upon said verdict.
It is therefore ordered and adjudged by the court that the
motion of said defendant for a new trial be, and the same
hereby is, overruled, and that the said plaintiff, A. B., recover
of said defendant, The C. & D. Railroad Company, the sum
of dollars, together with his costs herein expended,
taxed at $ .
And thereupon came the said defendant, and presented to
the court its bill of exceptions herein, which having been ex-
amined by the court and found in all respects to be true, and
correct, is hereby approved, allowed, signed and when filed,
is ordered to be made a part of the record hereof.
PROCESS, MOTIONS, JUDGMENTS, ETC. 305
No. 235.
Verdict and Judgment in Ejectment.
[Caption.']
Comes again the jury heretofore empaneled, and after hear-
ing all the evidence, the arguments of the counsel of the re-
spective parties, and the charge of the court, returns into court
the following verdict:
That they find that the plaintiffs are the owners in fee and
entitled to and in possession of the following lands situated
in county, , to wit: .[Description of land.]
As to the other land herein sued for, not embraced in the
above descriptions, the jury finds the plaintiffs are not entitled
to the same.
It is therefore considered, ordered and adjudged, that the
plaintiffs do have and recover of and from the defendants sev-
erally the lands hereinbefore described, found by the verdict
of the jury to belong to them in fee, and that the plaintiffs do
have and retain the possession of such lands under and in
accordance with their said title ; and that as to the lands herein
sued for, not embraced by the verdict of the jury in favor of
the plaintiffs, the defendants go hence without day; and that
the plaintiffs recover of the defendants all their costs herein
expended, and that execution issue therefor. No costs are
adjudged against the defendants, E. F. and G. H., as they
have not set up any claim to the lands recovered" by the plain-
tiffs, and the plaintiffs will pay the costs as to them, for which
execution may issue.
No. 236.
[Caption.'] Motion for a New Trial.
The defendant moves that the verdict herein rendered be
vacated and a new trial awarded for the following reasons :
First. Said verdict was not sustained by sufficient evidence.
SUITS AT LAW.
Second. There was no testimony tending to sustain the ver-
dict.
Third. Said verdict was contrary to law.
Fourth. The court erred in refusing to instruct the jury to
render a verdict for the defendant.
Fifth. The court erred in refusing each of defendant's spe-
cial charges, numbered respectively i, 2, 3 and 4.
Sixth. The court erred in certain particulars of its general
charge, excepted to by the defendant at the time.
Seventh. There were other errors of law appearing upon
the trial, prejudicial to the defendant. R. X.,
Attorney for Defendant.
No. 237.
Motion for New Trial by Defendant (i).
[Caption.]
Now comes defendant and moves the court to set aside the
verdict of the jury and to grant it a new trial herein for the
following reasons :
First. Court erred in overruling defendant's motion to
instruct the jury to find for defendant made at the close of all
the testimony.
Second. Court erred in so much of its general charge to the
jury as left to it to determine whether or not plaintiff was a
passenger at the time of the injury, as charged, and that the
duty of defendant towards plaintiff was that due a passenger,
and that the care and caution to be exercised by her was that
of a passenger, if they believed she was such, and each and
every portion of the charge that grew out of leaving that
question to the jury.
PROCESS, MOTIONS, JUDGMENTS, ETC. 307
Third. The verdict of the jury is contrary to law and
against the weight of evidence.
Fourth. The verdict is excessive. R. Y.,
Attorney for Defendant.
(i) The defendant waives his exception to motion to instruct for
defendant at close of plaintiff's evidence by putting in his case. Colum-
bia, etc., R. Co. vs. Hawthorne, 144 U. S. 202.
No. 238.
Motion for New Trial Where Court Instructed Jury to Find
for Defendant.
[Caption.]
And now comes the said plaintiff, by R. S., his attorney,
and moves the court now here to set aside the verdict and
judgment in said cause and grant a new trial therein for the
reason that:
The court erred in instructing the jury that the plaintiff
can not recover under the proofs in this cause and directing a
verdict for the defendant.
This motion is based on the records and files in said cause
and the testimony taken on the trial thereof.
R. X.,
Attorney for Plaintiff.
No. 239.
Order Setting Aside Order Sustaining Motion for New Trial.
[Caption.]
The order of the court heretofore made granting the motion
for a new trial is now set aside for the reason that counsel for
the plaintiff misunderstanding the order of the court as to the
time for hearing the motion for a new trial were not present.
Leave is given to counsel for both sides to submit briefs within
ten days from this order. Briefs of counsel shall be served
upon opposing counsel.
308 SUITS AT LAW.
No. 240.
Order Sustaining Motion for New Trial and Ordering a New
Trial.
[Caption.~\
This cause being heard on the motion of the defendant to
set aside the verdict of the jury heretofore rendered herein
and for a new trial, for reasons set forth in said motion, which
was argued by counsel and the court being fully advised in
the premises is of the opinion and does hereby sustain said
motion. The verdict is accordingly vacated and a new trial
granted.
No. 241.
Order Overruling Motion for New Trial and Judgment for
Defendant upon the Verdict.
1C option.']
This cause again came on to be heard upon the motion of
the plaintiff for a new trial of this cause, for reasons set forth
in said motion, and was argued by counsel and the court
being fully advised in the premises do overrule said motion,
to which ruling of the court, said plaintiff, by his attorneys,
excepts.
It is thereupon considered and adjudged by the court that
said defendant go hence without day and recover of the said
plaintiff its costs herein expended, taxed at $ and that
said plaintiff pay his own costs, to which judgment of the
court, said plaintiff, by his attorneys, execpts. And for good
cause shown, leave is given the plaintiff to prepare and have
allowed and signed his bill of exceptions in sixty days from
this date.
PROCESS, MOTIONS, JUDGMENTS, ETC, 309
No. 242.
Motion for New Trial (1).
[Caption.]
And now comes defendant, by its counsel, and moves the
court to set aside the verdict heretofore rendered herein, and
to grant a new trial in this cause, and for grounds for said
motion presents and shows to the court the following, to-wit :
1. The court admitted on the trial improper evidence on the
part of the plaintiff.
2. The court refused to admit proper evidence offered by
the defendant.
3. The court improperly refused and denied the defendant's
motion for peremptory instruction at the close of the plaintiff's
evidence, and refused to give to the jury the peremptory in-
struction asked by the defendant.
4. The court improperly denied the defendant's motion for
peremptory instruction at the close of all the evidence and
refused to give to the jury the peremptory instruction offered
by the defendant.
5. The court gave improper instructions to the jury.
6. The verdict was contrary to the law.
7. The verdict was contrary to the evidence.
CHICAGO & NORTH WESTERN RAILWAY COMPANY,
By A. B.,
(1) See No. 236. Its Attorney.
No. 243.
Motion for a New Trial, and Order Overruling, and
Judgment (1).
[Caption.]
Now comes the defendant in the above entitled cause and
moves the court to set aside the verdict of the jury herein and
grant it a new trial of said cause for the following reasons :
1. The court committed error in overruling the defendant's
objection to the introduction of any testimony under the peti-
310 SUITS AT LAW.
tion, interposed at the beginning of the trial, to which ruling
defendant duly excepted at the time.