CENTURY INDEMNITY CO.
v.
NELSON
Rehearing denied.
(dissenting).
In its opinion, 9 Cir., 90 F.2d 644, this Court found that the requested findings had been presented to the court but at a period when the court had lost jurisdiction. I regard this as a finding that the requested findings in fact were presented to the trial court.
The Supreme Court has held, in accord with the finding of fact of their presentation in our opinion, that they were presented, but holds they were presented during the trial. That they were refused is apparent from the findings actually made.
In my opinion it is now the law of the case that there is a record conferring the power on us to hear and determine the errors charged against the trial court, in refusing the requested findings, and that we have been commanded by the Supreme Court so to do. Ex parte Union Steamboat Co., 178 U.S. 317, 318, 20 S.Ct. 904, 44 L.Ed. 1084.
In none of the briefs filed here prior to the hearing on the return of the case from the Supreme Court did appellee raise the question of the absence of the presentation of the proposed findings. On the contrary, appellee argued that the trial court’s refusal was justified. It is claimed by the appellant and not denied by appellee that appellee as respondent in, the Supreme Court did raise the question of their absence from the bill. If so it may be that the Supreme Court consciously has decid-' ed that the record sufficiently presents the claimed error.
Whether or not this is so, our own finding of the presentation of the proposed findings is the basis of the Supreme Court’s mandate and we should not treat the holding of the Supreme Court as not the law of the case.
The petition for rehearing should be granted.
DENMAN, Circuit Judge
(dissenting).
In its opinion, 9 Cir., 90 F. 2d 644, this Court found that the requested findings had been presented to the court but at a period when the court had lost jurisdiction. I regard this as a finding that the requested findings in fact were presented to the trial court.
The Supreme Court has held, in accord with the finding of fact of their presentation in our opinion, that they were presented, but holds they were presented during the trial. That they were refused is apparent from the findings actually made.
In my opinion it is now the law of the case that there is a record conferring the power on us to hear and determine the errors charged against the trial court, in refusing the requested findings, and that we have been commanded by the Supreme Court so to do. Ex parte Union Steamboat Co., 178 U.S. 317, 318, 20 S.Ct. 904, 44 L.Ed. 1084.
In none of the briefs filed here prior to the hearing on the return of the case from the Supreme Court did appellee raise the question of the absence of the presentation of the proposed findings. On the contrary, appellee argued that the trial court’s refusal was justified. It is claimed by the appellant and not denied by appellee that appellee as respondent in, the Supreme Court did raise the question of their absence from the bill. If so it may be that the Supreme Court consciously has decid-' ed that the record sufficiently presents the claimed error. Whether or not this is so, our own finding of the presentation of the proposed findings is the basis of the Supreme Court’s mandate and we should not treat the holding of the Supreme Court as not the law of the case.
The petition for rehearing should be granted.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Ex parte THE Union Steamboat Co., 178 U.S. 317 (U.S. 1900)
- Taylor and Marshall v. Beckham, 178 U.S. 610 (U.S. 1900)
- Century Indem. Co. v. Nelson, 90 F.2d 644 (9th Cir. 1936)
- Century Indem. Co. v. Nelson, 96 F.2d 679 (9th Cir. 1938)