The San Francisco call., 1896-10-27
FOR TUNE WON BY ERROR
The Mutual Life Insurance Com
pany Falls a Victim to a
Technically.
How the Clerk of a Court Swears to
One Thing When the Records
Show Another.

Mrs. Nellie Phinney of Portland, execu-
trix of the estate of Guy g. Phinney, OBJ
tained a peculiar but substantial victory
in the United States Court of Appeals yes
terday. Through the fault of some one
said to be A. Reaves Ayers, clerk OF the
United States Circuit Court for the District
of Washington-the right of the Mutual
Life Insurance Company to be heard by
the Court of Appeals in an action involv-
ing sos, 900 was denied and the suit Or
dered dismissed.
The facts leading up to this unexpected
climax and the condition which brought
about the original suit may be briefly told
as follows: Some months before his death
Guy C. Phinney of Portland insured his
lie for 100000 When the widow made
demand for the money the company re-
fused payment, alleging misre presenta-
ton on the part of the deceased. suit
to recover the face of the policy, less the
premium due, was instituted by Mrs.
Phinney in the Circuit Court of Washing
ton, the company finally los ng.
Notice of an appeal was at once given
and the writ OF error later placed in pos
session of the clerk of the court, A. Reaves
Ayers. When the papers finally reached
the clerk of the Court of Appeals it was
discovered by Mrs. Phinney's attorney
Lorenzo S. B. Sawyer. that the writ OF
error had never been filed with the clerk
OF the Washington court. AT least there
was no record or such act On the docu-
ment itself. At the June session of the
Court of Appeals Mr.. Sawyer moved to
dismiss the entire action on the ground
that no proper or legal citation on the
writ of error had been issued or served,
and further that the writ had not been
filed with the court below.
The court took the matter under advise
ment and yesterday majority of that
body, Judges Ross aDd Hawley, rendered
an opinion sustaining the contention of
Mrs. Phinney's attorney and ordering the
action dismissed with costs to the plaintiff
in error. Judge Gilbert returned dis
senting opinion, to the effect that the in
dorsement on the writ of error of the clerk
in the lower court was not essential. The
fact that he had the document IN his DOS
session was all that was necessary.
II was stated yesterday that the failure
of the clerk of the lower court to place his
Endorsement on the writ of error would
probably cause that gentleman no end OF
trouble. if the insurance people see proper
to push their claim. Mr.. Ayers has made
affidavit that the writ of error was filed,
though the document itself gives no evil
dence of this. In the meantime the COM
pany may take an appeal to the Supreme
Court, asking that body 10 order the Court
OF Appeals to review the case.
Opinions were also rendered in the fol-
lowing cases yesterday:
Southern Pacific Railroad, plaintiff in error,
VS.. David R. Brown, defendant in error, petit
tion for rehearing denied.
]. ]. Hennessy ct al, plaintiff in error, vs.
II. S. Bond, defendant in error, judgment of
lower court affirmed with costs.
S. S. Bailey. plaintiff in error, VS.. II. S. Bond,
defendant in error; judgment of lower court
affirmed with costs.