726

91 FEDERAL REPORTER.

answers that" they were void, and evidence touching the circum: stances of their execution was introduced. That issue was, consequently, in litigation. If the trial court had assumed to pass upon the question of the validity of the releases, and had decided it erroneously, either upon a misconception of the law or of the evidence, it is entirely plain that the adjudication, so long as unreversed, would have been final, and that question could not have been reopened in any subsequent litigation between the same parties. The trial court held that the releases were without effect on the rights of the parties, and, even though that decision was erroneous, it was final between the parties until reversal; and if it be assumed that the opinions of the appellate courts should be treated as a reversal of that decision, and that both of these courts erroneously held the releases to be valid, these determinations are final between the parties upon that question. The complainants have had their day in court, before tribunals having jurisdiction to settle their rights, andl. even if there has been a miscarriage of justice, they must submit. "Interest reipublicre ut sit finis litinm." The proposition that their rights have been disposed of without due process of law is too preposterous to merit discussion. They have had a trial according to the settled course of judicial proceedings. They have been heard, and heard ad libitum, though without avail. . In granting the order for a preliminary injunction, the court below was mainly influenced by the decision of Judge Wheeler, rendered upon a demurrer to the complainants' bill. 88 Fed. 713. It is altogether probable that, if all the facts which appear in the present record had been before the learned judge decided the demurrer, he would not have reached the conclusion that the former adjudication was not a bar to the present suit. However that may be, inasmuch as we are satisfied that the complainants cannot ultimately prevail upon the case made by their bill, we conclude that they are Dot entitled .to preliminary relief. The or<:er is accordingly reversed.

CITY OF MILWAUKEE v. SHAILER & SCHNIGT,AU CO.

(Circuit Court of Appeals, Seventh Circuit.
No. 535.

February 7, 1899.)

ApPEAL-REVJEW-QUESTJONS PRESENTED BY RECORD.

A case cannot be reviewed. on assignments of error relating to the admission or exclusion of evidence and the Instructions given and refused, where tbe· bill of exceptions does not purport to contain all the evidence, and. as Is shown by references made thereto In the cJ;targe of the court, omits Important testimony touching the points of controversy. though It Is certified to contain all the material evldence. 1

In Error to the Circuit Court of the United States for the Eastern District of Wisconsin.
1

'If.

For necessity of Including evidence In blll of exceptions, Milling Co., 14 C; C. A. 248.

:lee

note to Ladd

CITY OF MILWAUKEE V. SHAIJ,ER &: SCHNIGLAU CO.

727

Carl Runge and C. H. Hamilton, for plaintiff in error. James G. Flanders, for defendant in error. Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.
& Schniglau Company, defendant in error, as the assignee of Shailer

WOODS, Circuit Judge.

This action was brought by the Shailer

& Schniglau, to recover the value of "machinery, tools, and material comprising one tunnel plant at Milwaukee," alleged to have been con· verted to its own use by the city on or about the 15th day of October, 1893. The first, second, third, and fourth specifications of error, which alone are relied upon in the brief for the plaintiff in error, have rela· tion to the admission and exclusion of evidence and to instructions refused and given. Each specification is objectionable, because it embraces jointly J;llore than one proposition and question, and some of them in other respects fail of compliance with rule 11 of this court (31 C. C. A. cxlvi.; 90 Fed. cxlvi.) in respect to the assignment of errors; but an insuperable obstacle to a consideration of any of the questions discussed is that the bill of exceptions does not purport to contain all the evidence in the case, and clearly does not contain all that was important touching those questions, though it is certified by the judge of the court below that it "contains all the material evidence offered by either party on the triaL" The court directed a verdict in favor of the plaintiff, leaving to the jury to determine only the amount of the recovery, and, in the course of the charge, in explanation of the peremptory direction, made a number of references to evidence which is not found in the bill. For instance, it is stated that "it appears, by undisputed testimony, that after removing such of the property as they [the agents of the city] did remove to some other places, they treated the property as though it belonged to the city,-exercised dominion over it,"-and that the court held to be a conversion. We find evidence that, after notifying Shailer & Schniglau to remove their property, the agents of the city, in order to get it out of the way, and to store or protect it, removed it into sheds, or other places of storage near by, and afterwards used some of it, but not all, in the prosecution of the work on the tunnel. That any dominion over that not used was ever asserted in hostility to the rights of Shailer & Schniglau, or their assignee, we find no evidence in the record. The court, in considering which party was guilty of a breach of the contract, also commented at large upon the evidence touching the conduct of the parties in reference to the work and cessation of WOI'k, both on the shore end of the tunnel and at the crib; but the evidence referred to is not included in the bill. Much of it presumably was the same as that rehearsed in the statement of the case in City of Milwaukee v. ShaBer, 55 U. S. App. 523, 28 C. C. A. 286, and 84 Fed. 106. The pleadings, judgment, and opinion of the court in that case were put in evidence in this, ahd are set out in the record; but, as the judgment was not pleaded as an adjudi. cation, it can be regarded only as prima facie evidence of the facts or issues determined, and the other evidence referred to remained ma-

7,2&

91

FEDERAL REPORTER.

terial. David Bradley Mfg. Co. v. Eagle Mfg. Co., 18 U. S. App. 349, 6 C. C. A. 661, and 57 Fed. 980. However,i,f the juqgment, could be dee)l),ed a complete estoppel on the question which party was guilty of an infraction of the contract, the plaintiff in error cannot complain that the question was taken from the jury; and, on the other hand, if, as the plaintiff, in.error contends, the judgment is not only not conclusive, but, in view of the ruling of this court whereby it was affirmed on anotber ground, is not even eviof breach of the contract by the city, then still more is it now essential to a review of the ruling on that question that the evidence by the court below should be before us. The judgment is therefore affirmed. , Judge SHOWALTER did not participate in this decision.

ROSENPLAENTER v. PROVIDENT SAV. LIFE ASSUR. SOC. OF NEV. YORK. (Circuit Court, W.'D. Tennessee, W. D. 1.
I,IFE

January 7, 1899.)

A Ufe 'Insurance policy In terms insuring the holder for one year from Its date, but containing a provision for its renewal from year to year during the life of the assured' by the payment of. successive annual renewal premIums, Is not an entire cQntract for the lite of the assured, but is a valid "term insurance contract for one year," within Laws N. Y. 1892, c. 690, § 92, whIch Is specially excepted by that sectIon from Its general provision that no POlicy shall be declared forfeited or lapsed for nonpayment of premIums without the Pliescribed notice to the insured.

OF POLICy-TERM

2. SAME-S'I''\'I'UTES REGULA'l'ING FORFEITURES-.,EFFEC'I' OF REPEAL. LawS 'N' Y. 1877, c. :121, providing that no policy of life Insurance should

be declatled forfeIted unless a prescribed hotice should be served on the Insured, '(Ud' not become a part of the' contracts created 'by policies subsequently w;ritten in the state, so that Its repeal ImpaIred the obligation of sucb but wall merely a rel\'ulation for the government of, in. surance companies, belonging to t}1e class, of remedial statutes which It is competent f,ortlie legislature to enact, repettI, or amend, making the same appUcableito existing contracts, witbout 'affecting the obligation of sucb , contraots;

On DemU:rrer' to Declarition.

Tbe Issved a of insurance upon the llfe of Carlos G. Rosenplaenter, in fayor of bls wife, },fary Anna, the above-namedpl:;tintiff, It is dated on the '1st day of Aprli, 1889, Is for the sum of $10,000, and payable, at the death: olHbe life assured, to the betlefi'eiary. The consideration named, besides the: c()lildith)ns and agreements Indorsed upon the back of the pollcy, is:. tbe firilt annual preUllulTl on this poliC3f; and in semi· annual of eacb payable! on the first. days of April and October, ,of which payment the defendant company'promiMs to pay the I1laintitf the sum of $10,000 "within 9Q days after the acceptlL11lce of satisfactory proof, at Us office in the city of Ne,v York, Rosenplaenter, * · * provided such death shall of the occur before,twe1ve o'clock nOon on the first day of April, A.D. 1800." The following Is of the stipulations of the polley: "And the said society furtheragrees to' renew and extend this insurance upon llke conditions during eacb succeeding year of the life of the Insured from'date hereof upon the