McCutcheon v. Hall Capsule Co. , 13 Ohio F. Dec. 243 ( 1900 )

CLARK, District Judge,

after stating the case, delivered the opinion of the court.

' The record disclosing no exception in the court below to rulings in the admission or rejection of evidence, and there being no motion or request for a peremptory instruction in favor of the defendant, the contention of the defendant in error is that the .one general exception to the whole charge does not authorize a bill of exceptions which brings before this court the whole evidence used on the trial of the case in the court below, and that the bill of exceptions is also insufficient in view of rule 10 of this court. 31 C. C. A. cxiv., 90 Fed. cxiv. In view of this state of the case, it is insisted by the defendant in error that the case is not brought within the revisory power of this court, and that no question of- law is presented for our consideration. The S. C. Tryon, 105 U. S. 267, 26 L. Ed. 1026; Pennock v. Dialogue, 2 Pet. 1, 7 L. Ed. 327; Burton v. Ferry Co., 114 U. S. 474, 5 Sup. Ct. 960, 29 L. Ed. 215; and other cases, — ave cited as supporting the contention of the defendant in error; but, assuming that the motion to dismiss should not be,sustained, we are of opinion that there was color for the motion, which authorizes the court to entertain the motion to affirm, and that this motion should be granted. The single exception taken to the charge did not direct the attention of the court to the particular portions of it to which the objection was made, and therefore raised no question for review. It has been declared again and again that our right of review is limited to questions of law appearing on the face of the record, and no such questions are presented here. In Holder v. U. S., 150 U. S. 92, 14 Sup. Ct. 10, 37 L. Ed. 1010, Mr. Chief Justice Fuller, in giving the opinion of the court, said:

“There is no pretense that the charge of the court, occupying twenty-four pages of the printed record, was erroneous in every part, and no exception to any particular part is shown. The rule is that a general exception to a charge, which does not direct the attention of the court to the particular portions of it to which objection is made, raises no question for review. Burton v. Ferry Co., 114 U. S. 474, 5 Sup. Ct. 960, 29 L. Ed. 215; Iron Co. v. Blake, 144 U. S. 476, 488, 12 Sup. Ct. 731, 36 L. Ed. 510; Lewis v. U. S., 146 U. S. 370, 13 Sup. Ct. 136, 36 L. Ed. 1011. It has also been settled by a long line of decisions of this court that the denial of a motion for a new trial cannot be assigned for error. As observed by Mr. Justice Lamar in Van Stone v. Manufacturing Co., 142 U. S. 128, 134. 12 Sup. Ct. 181, 35 L. Ed. 961, no authorities need b'e cited in support of the proposition.”

See, also, Holloway v. Dunham, 170 U. S. 615, 620, 18 Sup. Ct. 784, 42 L. Ed. 1165; Hansen v. Boyd, 161 U. S. 397, 16 Sup. Ct. 571, 40 L. Ed. 746.

. And the assignments of error cannot be availed of to import questions into the record, in the absence of an exception which directs the attention of the court to the particular portions of the charge objected to. Lindsay v. Burgess, 156 U. S. 208, 15 Sup. Ct. 355, 39 L. Ed. 399; Burton v. Ferry Co., 114 U. S. 474, 5 Sup. Ct. 960, 29 L. Ed. 215; Claassen v. U. S., 142 U. S. 140, 148, 12 Sup. Ct. 169, 35 L. Ed. 966; Philip Schneider Brewing Co. v. American Ice-Mach. Co., 23 C. C. A. 89, 77 Fed. 138; Ansbro v. U. S., 159 U. S. 695, 16 Sup. Ct. 187, 40 L. Ed. 310.

Assuming that the exception, although general in its terms* could be regarded as limited to that portion of the charge embodied in the fourth assignment of error, as insisted by counsel for plaintiff in error, it would only be necessary to say that the charge in this respect was obviously sound.’ Indeed, this is now conceded, or, if not, is top. ob: viously true to admit of denial. ;

The chief contention in this court on behalf of the plaintiff in error' is that the contract sued on is void, as in restraint of trade, at come mon law, and in contravention of the act of congress prohibiting.contracts in restraint of interstate commerce. This question is not raised by the assignments of error in this court, nor was it raised by the pleadings in the court below. It is insisted, however, that a contract contravening public policy is one which should not be enforced, and that the objection should be noticed by the court and considered, in the absence of an assignment of error. The alleged illegality does' not, however, appear as a matter of law upon the face of the pleadings; and if, in view of the record, disclosing no motion for a peremptory instruction for the defendant, and only a general exception to the charge, we were authorized to examine the evidence and refer to the contract, the asserted invalidity does not appear upon the face of the contract, or from the admitted facts of the case. The conditions, therefore, which would justify this court in such action as is suggested, do not exist here. Carter-Crume Co. v. Peurrung, 30 C. C. A. 174, 88 Fed. 439. Furthermore, the issue whether the contract was invalid on account of any unlawful purpose, or knowledge of such purpose, in its execution, was submitted to the jury as a question of fact, without objection, under a charge not excepted to in that respect, and without a motion to direct a verdict. Under such circumstances, this question of fact is not open to re-examinafcion by this court. Hansen v. Boyd, 161 U. S. 402, 16 Sup. Ct. 571, 40 L. Ed. 746. Judgment affirmed.