Maine Northwestern Development Co. v. Northwestern Commercial Co.

(after stating the facts as above). [1] The appellee has interposed a motion to dismiss the appeal on the ground that the appellant has mistaken its remedy, and that this court is without power to review the case upon appeal. In view of the provisions of the act of Congress approved March 3, 1915 ( 38 Stat. 956 , c. 90), adding to the Judicial Code, among others, section 274b, we do not regard it as important whether the matters set up in the affirmative defense referred to in the statement constitute an equitable defense, or were properly tided and disposed of at law. That section is as follows:

In the absence of a rule of court regulating the method of procedure, the court is thus given “full power to render such judgment upon the record as law and justice shall require.” There being no such rule to the contrary, we do not think we would be justified in dismissing the appeal. The motion is denied.

On the trial no request was made on behalf of the plaintiff for a directed verdict, but upon the conclusion of all of the evidence the case was submitted to the jury upon the merits and under full instructions from the court, to which no exception was taken on behalf of the…