alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
11071.

#### Bogush *v.*Southeastern Manufacturing and Specialty Company.

Stephens, J.

1. Where a servant is employed in the operation of a machine used for the purpose of stamping out and flattening leather washers by the intermittent rising and falling of a heavy steel die upon a flat surface, such die being controlled by a pedal operated by the foot of the servant, and the duty of the servant being to place the washers upon the surface when the die is up, preparatory to being stamped by the die when it falls, and to remove the flattened washers after the die is raised, it is a perfectly obvious danger that the hand of the servant will be injured if ho fails to remove it from under the -die before it falls, and such obvious risk is therefore assumed by a servant undertaking to operate the machine. The fact that the master has instructed the servant to place his hand in such dangerous position will not excuse the servant from assuming the obvious risk.

2. While “ A servant may recover from his master for an injury occasioned by a dangerous instrumentality negligently maintained by the master, although it appear that the servant was not ignorant of the existence of such dangerous instrumentality, if it is shown that at the time of the injury the servant was rendered oblivious or otherwise incapable of exercising his information as to the existence of the dangerous thing on account of the engrossing character of the work at hand” *(King*v. *Seaboard Air-Line Ry.,*1 *Ga. App.*88, 58 S. E. 252), yet, “where the engrossing work involves the use of the dangerous instrument itself and it does not appear that the servant had any duty to claim his care and attention other than the doing of the very work by which he was *269injured, and that no other engrossing work claimed his attention so as to distract it from an appreciation of what was involved in the act he was about to attempt, it cannot be said that ‘ the servant was rendered oblivious or otherwise incapable of exercising his information as to the existence of the dangerous thing.'- Moreover, in the *King*ease, supra, the ‘engrossing work' was such as diverted the servant’s attention away from the danger, instead of, as' in the instant case, fixed it upon the danger itself.” *Ryle*v. *Macon News Printing Co.,*25 *Ga. App.*106 (102 S. E. 835).

Decided May 5, 1920.

Action for damages; from Fulton superior court-—Judge Bell. October 22, 1919.

*Philip Waltner, Branch & Howard,*for plaintiff.

*Troutman & Freeman,*contra.

3. The petition as amended failed to set out a cause of action, and was therefore properly dismissed on general demurrer.

*Judgment affirmed.*

*Jenkins, P. J., and Smith, J., concur.*
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

KENNETH W. YATES, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 09-00212-CG-N

)

MICHAEL J. ASTRUE, )

Commissioner of Social Security )

)

Defendant. )

ORDER

After due and proper consideration of all portions of this file deemed relevant to the

issues raised, and there having been no objections filed, the recommendation of the Magistrate

Judge made under 28 U.S.C. § 626(b)(1)(B) and dated March 29, 2010, is ADOPTED as the

opinion of this Court and it is ORDERED that the plaintiff’s motion be GRANTED and

plaintiff awarded fees in the amount of $1,028.54 pursuant to the EAJA.

DONE and ORDERED this 14th day of April, 2010.

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

Case 1:09-cv-00212-CG-N Document 27 Filed 04/14/10 Page 1 of 1
#### Spellman *v.*The First National Bank of Shelbyville.

Supreme *Court.—Notice of*Appeal.—Where, upon an appeal to the Supreme Court from a joint judgment, any of the judgment defendants do not join in the appeal, and notice of the appeal is not given them, as required by section 551, 2 G. & H. 270, the appeal will be dismissed.

APPEAL from the Shelby Circuit Court.

*M. M Bay,*and *O. J. Glessner,*for appellant.

*B. H. Davis*and *C. Wright,*for appellee.

Pettit, J.

Appellee brought suit on a note payable in bank against Hinkle, Wright, and Spellman, the appellant. Hinkle was not served with process, nor did he appear. Issues were formed as to Wright and Spellman, trial by the court, and judgment rendered against them jointly. Spell-man only appealed, and has assigned errors, but has not given notice to his co-party, as required by sec. 551, 2 G. & H. 270. Following numerous rulings of the court, both formerly and latterly, the appeal must be dismissed, which is done at appellant’s costs.
<PAGE>   1
 
                                                                    EXHIBIT 23.1
 
               CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
 
     We consent to the reference to our firm under the caption "Experts" and to
the use of our reports dated February 5, 1998, in the Form S-1 Registration
Statement and related Prospectus of Thermadyne Holdings Corporation, to be filed
with the Securities and Exchange Commission on or about June 22, 1998.
 
                                            /s/  ERNST & YOUNG LLP
 
Orange County, California
June 22, 1998
#### James Moore *v.*M. Lee Speed and Wife.

Judicial Sales — Constructive Notice.

Only a substantial compliance with every requirement of the statute will give the court jurisdiction to sell property upon constructive service by warning order.

Judicial Sales — Presumption of Regularity.

¡Nothing can be presumed in favor of the regularity of a proceeding by warning order; but the record must show upon its face that the provisions of the Code have been substantially complied with.

APPEAL PROM BULLITT CIRCUIT COURT.

October 24, 1873.

Opinion by

Judge Lindsay :

The claim, of Mrs. Speed to dower in the land once owned by her first husband, Stephen Sewell, deceased, can only be defeated upon the idea that the sale in the case of Hoglan v. Sewell divested the latter of his ownership in said land. He was not before the court by actual service of process. The land was not attached, and therefore the court did not have possession or jurisdiction of the thing itself.

The record before us does not show that Sewell was brought before the court by constructive service of process; it is true that the clerk indorsed on the back of an amended petition a memorandum of the fact that there was a warning' order against Sewell, and an attorney appointed to defend for him; this attorney made a report, and received an allowance for his services, but the warning order itself is not to be found.

To constitute a valid constructive service, the clerk of the court .must make “an order ordering the defendant to appear in the action on the first day of the next term of the court which does not convene within sixty days of the time of making the order.” Civil Code, Sec. 88.

The order must be written out, so that when title is claimed through the judgment based upon the constructive service growing out of it, the courts may determine whether or not it was made in accordance with the provisions of law. Nothing but a substantial compliance with every prerequisite will give the court jurisdiction to sell property upon constructive service.

*239
      *R. H. Field, for appellant.*

*A. H. Field, for appellees.*

Nothing is to be presumed in favor of the regularity of such proceedings. The record must show upon its face that the provisions of the code have been substantially complied with or the judgment must be treated as inoperative and void. Brownfield et al. v. Dyer et al., 7 Bush 505.

The memorandum or the certificate of the clerk that an order had been made, conferred upon the circuit court no authority to proceed to judgment, and all action based upon such memorandum is void. It results, therefore, as the Bullitt Circuit Court had no jurisdiction of the person of Sewell, either by actual or constructive service, and no jurisdiction of the land by actual service, that its judgment and sale and the confirmation, did not so divest Sewell of his legal title as to deprive his wife of the rig'ht to claim dower in the land. '

Wherefore the judgment of the court below is affirmed.
#### Rebecca Simons v. David W. Simons.

*One cannot take advantage of one’s own wrong*

Where a wife had obtained a divorce on a sworn bill containing the usual allegation that there was no collusion, a subsequent bill filed by her to set aside the decree on the ground that it was procured by collusion was properly dismissed, in the absence of any showing that she had been defrauded.

Appeal from "Wayne.

Submitted Oct. 21.

Decided Oct. 27.

Bill to aside a decree of divorce. Complainant appeals.

Dismissal affirmed.

*Fdwim F. Oonely*for complainant.

*Otto Kvrchn&r*for defendant.

A party to a fraud whereby a decree was obtained cannot maintain proceedings to set aside the decree therefor: *Greene v. Greene*2 Gray 361; *Adams v. Adams*51 N. H. 397.

Mansion, C. J".

This is an appeal by the complainant from the decree dismissing the bill, which was filed to set aside a previous decree of divorce granted upon the complaint of this complainant, and which she now alleges was procured by collusion with her husband, the defendant. In the bill first filed and upon which the decree was granted she alleged that the acts done as therein set forth, “ were committed without the consent, connivance, privity or procurement of your oratrix, and that such bill is not founded on, or exhibited in consequence of any collusion, agreement or understanding whatever, between the parties thereto or between your oratrix or any other person,” — and this was sworn to. Without this sworn allegation in her bill of complaint it would not have been entertained, and she having thereby given the court jurisdiction and permitted the case to proceed to a final decree, she cannot now be permitted to take advantage of her own wrong and show that there was *254collusion between berself and husband in that case. She was not misled or defrauded therein but understood well what was being done, and that her husband consented. Indeed, the whole matter was simply a shameless bargain, and whether right or wrong she must now abide by it.

The decree dismissing the bill will be affirmed with costs.

The other Justices concurred.
1For our original decision, see Hexamer v Foreness, 981 F2d

821 (5th Cir. 1993).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 91-5115

____________________

MAURY HEXAMER,

Plaintiff-Appellant,

versus

PATRICK FORENESS, ET AL.,

Defendants-Appellees.

----------------------------

Appeal from the United States District Court for the

Eastern District of Texas

----------------------------

(July 27, 1993)

Before WISDOM, JOLLY, and DeMOSS, Circuit Judges.

BY THE COURT:

Following our ruling in her favor, Maury Hexamer filed a

motion for attorney's fees pursuant to the Equal Justice Act, 28

U.S.C. § 2412.1 We denied her motion in an unpublished order.

Hexamer now asks us to reconsider.

Under the Equal Access to Justice Act, a party that prevails

against the United States is generally entitled to attorney's fees

unless the United States' position was "substantially justified" or

"special circumstances make an award unjust." 28 U.S.C. §

2412(d)(1)(A). Although Hexamer is a prevailing party, she is not
-2-

entitled to attorney's fees for three reasons. First, Hexamer

represented herself pro se and attorney's fees simply are not

available to pro se litigants under the Equal Access to Justice

Act. See Demarest v. Manspeaker, 948 F.2d 655 (10th Cir. 1991);

Sommer v. Sullivan, 898 F.2d 895 (2d Cir. 1990); Naekel v.

Department of Transportation, 845 F.2d 976, 981 (Fed. Cir. 1988);

Merrell v. Block, 809 F.2d 639 (9th Cir. 1987); Crooker v. EPA, 763

F.2d 16, 17 (1st Cir. 1985). 

Second, Hexamer is not entitled to attorney's fees because the

government's position was "substantially justified." Although the

government did not prevail in this action, that does not mean that

its position was not "substantially justified." The government's

position is substantially justified if it has a "reasonable basis

in law and fact." Pierce v. Underwood, 487 U.S. 552, 553, 108

S.Ct. 2541, 2543 (1988). The government made reasonable,

supportable arguments and, at all times, acted in good faith. We

find that the government's position was clearly "substantially

justified." 

Finally, assuming that Hexamer was otherwise justified in

claiming attorney fees, we would deny her request for fees because

she did not adequately document the time she spent. Although

Hexamer did submit a handwritten list of dates she worked on the

case and the amount of time she allegedly spent on those days, she

did not attempt to explain how she spent this time. We cannot

approve an application for attorney's fees under the Equal Access
-3-

to Justice Act unless we have some idea of how the attorney

justified his or her time. Obviously, the documentation does not

have to be perfect, but the documentation we have in this case is

plainly insufficient.

Any one of the foregoing reasons requires us to reject

Hexamer's claims. Therefore, Hexamer's motion to reconsider our

decision denying her attorney's fees under the Equal Access to

Justice Act is 

D E N I E D.
**EXHIBIT 31.1**

 

SECTION 302 CERTIFICATION

 

I, Raymond J. Pacini, certify that:

 

1.               I have reviewed this quarterly report on Form10-Q of California Coastal Communities, Inc.;

 

2.               Based on my knowledge, this quarterly report doesnot contain any untrue statement of a material fact or omit to state a materialfact necessary to make the statements made, in light of the circumstances underwhich such statements were made, not misleading with respect to the periodcovered by this quarterly report;

 

3.               Based on my knowledge, the financial statements,and other financial information included in this quarterly report, fairlypresent in all material respects the financial condition, results of operationsand cash flows of the registrant as of, and for, the periods presented in thisquarterly report;

 

4.               The registrant’s other certifying officer and Iare responsible for establishing and maintaining disclosure controls andprocedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for theregistrant and we have:

 

(a)          designed such disclosure controls and procedures,or caused such disclosure controls and procedures to be designed under oursupervision, to ensure that material information relating to the registrant,including its consolidated subsidiaries, is made known to us by others withinthose entities, particularly during the period in which this quarterly reportis being prepared;

 

(b)         evaluated the effectiveness of the registrant’sdisclosure controls and procedures and presented in this report our conclusionsabout the effectiveness of the disclosure controls and procedures, as of theend of the period covered by this report based on such evaluation; and

 

(c)          disclosed in this report any change in theregistrant’s internal control over financial reporting that occurred during theregistrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarterin the case of an annual report) that has materially affected, or is reasonablylikely to materially affect, the registrant’s internal control over financialreporting; and

 

5.               The registrant’s other certifying officer and Ihave disclosed, based on our most recent evaluation of internal control overfinancial reporting, to the registrant’s auditors and the audit committee ofregistrant’s board of directors (or persons performing the equivalentfunction):

 

(a)          all significant deficiencies and materialweaknesses in the design or operation of internal control over financialreporting which are reasonably likely to adversely affect the registrant’sability to record, process, summarize and report financial information; and

 

(b)         any fraud, whether or not material, that involvesmanagement or other employees who have a significant role in the registrant’sinternal control over financial reporting.

 

 

Date: May 7, 2004

 
|   | /s/ Raymond J. Pacini   |   |
|--------|-------------------------|--------|
|   | Raymond J. Pacini       |
|   | Chief Executive Officer |

 

----
```

[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4659 Introduced in House (IH)]

108th CONGRESS
  2d Session
                                H. R. 4659

  To amend chapter 43 of title 38, United States Code, to extend the 
period for which an individual may elect to continue employer-sponsored 
    health care coverage under the Uniform Services Employment and 
        Reemployment Rights Act of 1994, and for other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             June 23, 2004

Mr. Brown of South Carolina (for himself, Mr. Michaud, and Mr. Smith of 
 New Jersey) introduced the following bill; which was referred to the 
                     Committee on Veterans' Affairs

_______________________________________________________________________

                                 A BILL

 
  To amend chapter 43 of title 38, United States Code, to extend the 
period for which an individual may elect to continue employer-sponsored 
    health care coverage under the Uniform Services Employment and 
        Reemployment Rights Act of 1994, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``USERRA Health Care Coverage 
Extension Act of 2004''.

SEC. 2. TWO-YEAR PERIOD OF CONTINUATION OF EMPLOYER-SPONSORED HEALTH 
              CARE COVERAGE.

    (a) Improvement in Period of Coverage.--Subsection (a)(1)(A) of 
section 4317 of title 38, United States Code, is amended by striking 
``18-month period'' and inserting ``24-month period''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
apply to elections made under such section 4317 on or after the date of 
the enactment of this Act.

SEC. 3. REINSTATEMENT OF REPORTING REQUIREMENTS.

    Section 4332 of title 38, United States Code, is amended in the 
matter preceding paragraph (1) by striking ``no later than February 1, 
1996, and annually thereafter through 2000'' and inserting ``no later 
than February 1, 2005, and annually thereafter''.
                                 <all>
```
Exhibit 32.1

 

**                                                THE MONARCH CEMENT COMPANY                                                   CERTIFICATION PURSUANT TO                                                           18 U.S.C. SECTION 1350,                                                       AS ADOPTED PURSUANT TO                                                                      SECTION 906                                                                           OF THE                                                    SARBANES-OXLEY ACT OF 2002**

In connection with the Annual Report of The MonarchCement Company (the "Company") on Form 10-Kfor the year ended December 31,2006, as filed with the Securities and Exchange Commission on the datehereof(the "Report"), the undersigned, in the capacity and on the date indicatedbelow, hereby certifiespursuant to 18 U.S.C. Section 1350, as adopted pursuantto Section 906 of the Sarbanes-Oxley Act of2002, that:

(1)   The Report fully complies with the requirements of Section 13(a) or15(d) of theSecurities Exchange Act of 1934; and

(2)   The information contained in the Report fairly presents, in allmaterial respects, the financial condition and results of operations of theCompany.

A signed original of this written statement required by Section 906 has beenprovided to The MonarchCement Company and will be retained by The MonarchCement Company and furnished to the Securitiesand Exchange Commission or itsstaff upon request.

 

Dated:  March 15, 2007

|   |   | /s/ Walter H. Wulf, Jr.               |   |
|--------|--------|--------------------------------------------------------------------------------------------------------|--------|
|   |   | Walter H. Wulf, Jr.    President and     Chairman of the Board                                         |   |
BOSTON FINANCIAL QUALIFIED HOUSING TAX CREDITS L.P. III
                             (A Limited Partnership)
                                  EXHIBIT 32.1

                CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
                    AS ADOPTED PURSUANT TO SECTION 906 OF THE
                           SARBANES-OXLEY ACT OF 2002


In connection with the Quarterly Report of Boston Financial Qualified Housing
Tax Credits L.P. III (the "Partnership") on Form 10-QSB for the period ended
September 30, 2007 as filed with the Securities and Exchange Commission on the
date hereof (the "Report"), the undersigned, the Principal Executive Officer and
Principal Financial Officer, hereby certifies pursuant to 18 U.S.C. Section
1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002,
that:

1.   the Report fully complies with the requirements of Section 13(a) or 15(d)
     of the Securities Exchange Act of 1934; and

2.   the information contained in the Report fairly presents, in all material
     respects, the financial condition and results of operations of the
     Partnership.



                                      /s/Gary Mentesana
                                      --------------------------------------
                                         Gary Mentesana
                                         Principal Executive Officer and
                                         Principal Financial Officer
                                         Arch Street III, Inc., as
                                         Managing General Partner of
                                         Boston Financial Qualified
                                         Housing Tax Credits L.P. III

                                         Date:  November 14   , 2007


A signed original of this written statement required by section 906 has been
provided to the Partnership and will be retained by the Partnership and
furnished to the Securities and Exchange Commission or its staff upon request.