Union Co-operative Ins. v. Bannerman

MARTIN, Chief Justice.

This is an appeal from a judgment recovered by the appellee against appellant for payment of an amount alleged to be due upon an insurance policy issued by the appellant. In this opinion the appellee will be named as plaintiff and the appellant as defendant.

The case was begun in the lower court on September 18, 1933, with the filing of a declaration by the plaintiff, claiming judgment against defendant in the sum of $3,-000 upon a certain policy of life insurance theretofore issued by defendant as an insurance company upon the life of plaintiffs husband, wherein the plaintiff was the beneficiary. Plaintiff alleged that her husband had departed this life; that thereupon the policy had become due and payable to her; that demand was made upon the company for the payment of the insurance, but defendant refused and still refuses to pay the same or any part thereof.

The defendant filed a plea to the declaration .in which it denied liability upon the policy, claiming that it had expired prior to the decease of the insured and was not in force or effect at that time.

On October 22, 1934, a written instrument entitled “A Stipulation of Facts to be Supplemented by Evidence at the Trial” was filed in the case whereby it was stipulated and agreed by the respective parties that the facts therein recited should be “accepted as proved, without the offering of testimony in .support thereof, in connection with the trial.”

Afterwards, to wit, on October 22, 1934, the parties waived a jury trial of the issues in the case and agreed that it might be tried by the court without a jury. Whereupon, on October 23, 1934, the court proceeded with the trial of the case, and found and entered the following judgment at the conclusion thereof:

“And thereupon, after this cause is fully heard the court finds for the plaintiff in the sum of three thousand dollars ($3,-000) with interest thereon from September 19, 1932.

“Whereupon, the right to file a motion for a new trial is expressly waived in open court, and it is agreed that judgment may now be entered on the court’s finding.

“Wherefore, it is considered that plaintiff recover of the defendant herein the sum of three thousand dollars ($3,000) with interest thereon from September 19, 1932, together with costs of suit to be taxed-by the clerk and have execution thereof.

“From the foregoing judgment the defendant by its attorney of record, in open court, notes an appeal to the Court of Appeals of the District; whereupon, an undertaking to act as a supersedeas bond is hereby fixed in the sum of thirty-five hundred dollars ($3,500), and a further undertaking to act as a cost bond is hereby fixed in the sum of one hundred dollars ($100) with leave to deposit fifty dollars ($50) cash with the clerk in lieu thereof.”

On November 5, 1934, an undertaking for appeal was filed and approved.

The record does not disclose that any exception was taken by the defendant to any ruling of the court made at the trial, nor to the finding of the court at the conclusion thereof, nor was any bill of exceptions filed in the case. It appears that on December 5, 1934, after the time had expired for the filing of a bill of exceptions, a motion was filed by the defendant for permission to file such a bill nunc pro tunc. This motion was denied by the court. On December 11, 1934, the defendant filed a petition in “original action” No, 2387, in this court, praying for an order requiring the trial court to permit defendant to- file such a bill in that court nunc.pro tunc, upon grounds set out in the petition. This petition upon consideration was denied by the court. On December 17, 1934, the defendant filed a motion in the lower court praying that the minute entry of the decree above copied be amended and amplified so as to include the following paragraph immediately succeeding the first paragraph of the minute entry, to wit: “No evidence was offered or introduced at. the trial except the documentary evidence described in said stipulation.” ' This motion, however, was denied by the court by order of January 3, 1935. At the same time the court granted the motion of the plaintiff to strike defendant’s order for a transcript of record on appeal, and to strike the assignment of errors filed by defendant, upon the ground that they were not filed within the time required by the rules of the court.

The stipulation of facts filed by the parties in the case expressly recites that it is to- be supplemented by evidence at the trial. In the absence of a bill of exceptions it does not appear what, if any, such supplemental evidence was offered or received at the trial. We think therefore that the present case cannot be distinguished from Darby v. Montgomery County Nat. Bank, 63 App. D. C. 313, 72 F.(2d) 181, 184, certiorari denied, 293 U. S. 579, 55 S. Ct. 92, 79 L. Ed. —, where we held: “That where there is in the record no special finding, no motion for judgment, and no exceptions, there is nothing an appellate court can review. * * * ”

Consistently, therefore, with our decision in the Darby Case, we find ourselves constrained to hold that the judgment of the lower court in the present case must be and it hereby is affirmed.