
    UNITED STATES v. 3,376.1 ACRES OF LAND IN LAUREL, WHITLEY, AND PULASKI COUNTIES, KY., et al.
    No. 316.
    District Court, E. D. Kentucky.
    May 5, 1939.
    E. L. Stephens, of Williamsburg, Ky., for T. J. Curd.
    H. C. Gillis, of Williamsburg, Ky., for Gillis & Terry.
   FORD, District Judge.

On November 3, 1938, the controversy between T. J. Curd and Gillis & Terry as to the proceeds derived from Tract No. 1408d was tried in open Court. The trial order shows that on that date, after the hearing of evidence on behalf of both claimants, the case was submitted to the Court for judgment with leave to' the parties to file briefs.

On January 24, 1939, the claimant T. J. Curd, by his attorney E. L. Stephens, filed a motion for leave to file a certain deed, a map and an explanatory note, as evidence on his behalf in rebuttal of certain testimony given by H. C. Gillis at the trial, to which Gillis & Terry have filed objections.

I know of no rule of procedure under which the Court would be authorized to receive evidence on behalf of a party in the manner sought by this motion. Under Rule 77(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, it is provided that “All trials upon the merits shall be conducted in open court.” The introduction of evidence in the manner sought by this motion would seem to be clearly in contravention of this rule as well as the requirements of 28 U.S.C.A. §§ 635, 637, governing the mode of proof in Federal Courts.

Upon proper showing, the Court may set aside the submission and re-open the case for the introduction of further proof, and such a motion, if filed promptly, will be entertained on behalf of Mr. Curd, if he desires to proceed in that manner.

The request for leave to introduce evidence in the manner sought in the motion of January 24, 1939 must be denied.

Let an order be entered accordingly.  