Brock v. Fuller Lumber Co.

Citations

• 153 F. 272
• 82 C.C.A. 402
• 1907 U.S. App. LEXIS 4406

Syllabus

<p>1. Writ of Error — Process—Amendment.</p> <p>A writ issued out of the federal court described plaintiff’s citizenship, but omitted to state the citizenship of either of the three defendants. Defendants moved to dismiss for want of Jurisdiction because of this omission, whereupon plaintiff ashed leave to amend the writ by inserting after the description of the “plaintiffs” the words “citizens and residents of.” This motion was allowed, all parties treating the word “plaintiffs” as intended for “defendants,” after which defendants, who were represented by the same counsel, filed a special plea denying that one of them was a citizen pf Massachusetts, which plea, was heard and overruled. Held, that the , error 'in the motion to amend was unsubstantial, and that plaintiff, as defendant in error, was entitled to correct the record by substituting the word “defendants” for “plaintiffs.”</p> <p>2. Juey — Right to Juey Trial — Waiveb.</p> <p>A written stipulation is not essential to a waiver of a jury to assess damages on a bond after default, under Rev. St. § 961 [U. S. Clomp. St. 1901, p. 699], declaring that, when the sum for which judgment shall be rendered in such suit is uncertain, it shall, if either party request it, be assessed by a jury.</p> <p>3. Same — Proceedings—Request eor Juey — Time.</p> <p>Plaintiff sued on a contractor’s bond to secure performance of a written contract. On the trial, defendants’ attorney stated that defendants might be defaulted, but that he “would like to be heard on the question of damages,” and immediately thereafter suggested that the ease be sent to an auditor. This was agreed to, and, though a jury was then present, an auditor was appointed, and no request was made for a jury trial at any time during the term, nor until four months after default, and after defendants had learned that the auditor’s report was unfavorable, when they applied for an assessment of damages by a jury, as authorized by Rev. St. § 961 [U. S. Comp. St. 1901