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payment of a sum of money by the defendant in said action, or that a levy might be made upon the property of the defendant in order to secure the payment of the judgment rendered. In such a case, where such a judgment is entered that an execution might issue, there is no question whatever but what in an action by the defendant against whom such an execution might run such defendant, having a foreign judgment or demand as a general creditor at the same time against the plaintiff in said judgment, may upon a proper showing have an injunction to restrain the collection by execution of said former judgment until judgment might be obtained by the general creditor, and the offset properly effected, as prayed for in this bill. But in order to plead an offset there must be some debt that
may be set off. In this case there is no debt owing by the Frye-Bruhn Company to Meyer as the result of said decree-nothing to be paid by the Frye-Bruhn Company to Meyer. The decree is for the division of copartnership funds then in the hands of the court. Under such conditions there can be no set-off, because there is no mutual debt; there was no other judgment requiring the payment of money by the general creditor.
This would seem, necessarily, to end any contention that the plaintiff might make, without any further consideration of matters presented. But there is another proposition that seems to make the attempted proceedings here improper, and that is the nature of the proceeding itself. It is sought to restrain the distribution of a fund already in custodia legis, and to restrain proceedings under a decree entered in this court ordering such distribution. Of course, the execution of judgments may be restrained under some circumstances, where they have been obtained by fraud and the like; but to undertake to restrain the division of funds in a case where the entire matter has been disposed of by the decree of the court is in my judgment a reprehensible practice, and one that should not ordinarily, with
out the clearest reasons therefor, be allowed. Jones v. Merchants' National Bank, 76 Fed. 687, 22 C. C. A. 483, 35 L. R. A. 698.
The court does not, however, in any way indicate that the fund under the control of this court and in the depository thereof might not be reached in a proper proceeding. A suit in the form of a creditors' bill, wherein it is alleged that judgment had been obtained in this jurisdiction, execution issued, and no property found, the insolvency of the defendant, and the existence of the fund which might be properly subjected to the payment of the claim against the creditor, might reach the fund even in this case; but that is not this proceeding. No judgment has been obtained in this court, and the fundamental requisites of a creditors' bill are wanting in the case made by the pleadings herein.
From the views herein expressed, it necessarily follows the temporary injunction prayed for must be denied, and it is so ordered.
CHASE V. ALASKA F. & L. CO.
(First Division. Juneau. May 5, 1903.)
1. NEW TRIAL-FORM OF MOTION FOR.
A motion for a new trial, in the language of the statute of Alaska, making no specification of the actual and particular grounds relied upon, is insufficient, and does not direct the atten
tion of the court to any error. 2. CONTRACTS—MASTER AND SERVANT.
Where a servant is wrongfully discharged, but his wages are paid up to that time, he cannot recover for future installments
for constructive service, but only for the breach of contract. 3. NEW TRIAL-NEWLY DISCOVERED EVIDENCE.
Newly discovered evidence to be available as the basis of a new trial (1) must have been discovered since the trial, (2) must not
be merely cumulative, or (3) go to the impeachment of witnesses. Evidence that the plaintiff, an employé of defendant corporation, was addicted to drunkenness or insurbordination, for which he was discharged, held not to be newly discovered evidence.
This action was tried before a jury on February 12, 1903, and the jury returned a verdict for plaintiff in the sum of $1,773. Thereafter, and within the time provided by law, on February 16, 1903, the defendant filed its motion for a new trial in words and figures as follows, omitting the caption, to wit:
"Comes now the above-named defendant, and moves the court to set aside the verdict heretofore on the 12th day of February, 1903, rendered in the above-entitled cause, and grant the defendant a new trial, for the following reasons:
"(1) The complaint in the above-entitled cause does not state facts sufficient to constitute a cause of action, and the allegations there do not support the verdict as rendered.
“(2) Surprise, which ordinary prudence could not have guarded against.
"(3) Newly discovered evidence material to defendants' defense, which it could not with reasonable diligence have discovered and produced on the trial.
"(4) Excessive damages, appearing to have been given under the influence of passion or prejudice.
"(5) Insufficiency of the evidence to justify the verdict, and that it is against the law.
“(6) Errors of law occurring at the trial, and excepted to by the defendant.
"This motion is based upon the files and records in this cause and the affidavits hereafter to be filed."
Time was requested and granted within which to file affidavits in support of the motion for a new trial, and, these having been heretofore filed, the case now comes on for hearing at this present term of court on the motion so supported.
Maloney & Cobb, for plaintiff.
BROWN, District Judge. It may be well first to address our attention for a few moments to the character of the motion itself. The pleader in this case, as in so many others in this court, has contented himself with reciting the statutory grounds for motion for a new trial, without setting out any specific cause or ground therefor whatsoever. I have frequently decided that a motion for new trial in the language of the statute, making no specification of the actual and particular grounds relied upon, is of no avail, and does not direct the attention of the court to any error; much less does it require the court to pass upon claimed errors occurring at the trial.
Under the California Code a statement is required to be filed in which shall be specified the particular errors upon which the moving party will rely. The motion for new trial refers to this specification, and, unless the specific error is clearly stated, the court of nisi prius may decline to consider them, and the appellate court will refuse to consider any error occurring on the trial not specifically presented in such statement. Reynolds v. Lawrence, 15 Cal. 361; Walls v. Preston, 25 Cal. 61; Moore v. Murdock, 26 Cal. 524; Burnett v. Pacheco, 27 Cal. 410; Partridge v. San Francisco, 27 Cal. 417; Zeigler v. Wells, F. & Co., 28 Cal. 265; Barstow v. Newman, 34 Cal. 91; Thompson v. Patterson, 54 Cal. 546; Crane v. Gladding, 59 Cal. 303. These cases, and particularly Hutton v. Reed, 25 Cal. 483, not only tend to show that the specifications must be made, but the particularity with which such specifications are required; and appeals were frequently dismissed under the California practice where such specifications had not been filed. People v. Goldburg, 10 Cal. 312; People v. Comedo, 11 Cal. 70; Sayre v. Smith, 11 Cal. 129.
The specification of errors in a statement is in no sense an assignment of errors. An assignment of errors, as understood in the common-law sense, is never used under the Code as a part or as pertaining to the statement required by the statute. Hutton v. Reed, 25 Cal. 483.
Under our statute in Alaska, the matter of exceptions is
treated in sections 221, 222, and 223, Code Civ. Proc. Section 223 refers to the statement in the following language:
"The statement of the exceptions when settled and allowed shall be signed by the judge and filed with the clerk and thereafter it shall be deemed and taken to be a part of the record of the cause. No exception need be taken or allowed to any decision upon a matter of law when the same is entered in the journal, or made wholly upon matters in writing and on file in the court."
No time is fixed by our statute within which the statement here referred to shall be filed, and under our practice the statement is deemed equivalent to a bill of exceptions that may be filed at any time during the term; or, where the decision or trial is had on the last days of the term, within 30 days after the close of the term, and this time may be extended by order of the court or judge entered in term time. Whether our rules of practice are entirely in harmony with this statute may be questioned, but they seem sufficiently so to be enforced and adhered to in this behalf.
A motion for new trial must be filed within three days after the rendition of the verdict or other decision sought to be set aside, but provision is made that affidavits may be filed in support of certain grounds of motion at a later day, and the time for filing these may also be extended.
It is clear that the statement relied on by the California courts which specify the particular errors complained of can by no possibility be before this court at the time the motion
a new trial is considered. Should it be required to be filed before the motion for a new trial is to be considered by the court, and it were not so filed, then, under the California decisions, the motion for new trial would be overruled as a matter of course, and all rights of appeal as to errors occurring at the trial would be lost to the moving party. Our statute seems to contemplate that this statement should not be filed, but that the motion for a new trial itself should present the errors complained of as clearly and as specifically as the