Blumenfeld v. Mogi & Co.
| Decision Date | 19 December 1923 |
| Docket Number | 4145. |
| Citation | 295 F. 123 |
| Parties | BLUMENFELD v. MOGI & CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Alexander A. Lawrence and Edmund H. Abrahams, both of Savannah, Ga. (A A. lawrence, Edmund H. Abrahams, and Lawrence & Abrahams, all of Savannah, Ga., on the brief), for plaintiff in error.
David C. Barrow, of Savannah, Ga. (David C. Barrow and Stephens Barrow & Heyward, all of Savannah, Ga., on the brief), for defendant in error.
Before WALKER and BRYAN, Circuit Judges, and GRUBB, District Judge.
This was a writ of error to review a judgment of the District Court of the United States for the Southern District of Georgia, in an action at law in which the defendant in error was plaintiff and the plaintiff in error defendant, to recover for the alleged breach of a contract for the sale and purchase of burlap. The plaintiff, who was the purchaser recovered in the District Court.
The case was tried without a jury by stipulation of the parties and the District Judge rendered a judgment for the plaintiff, but made and was requested to make no special findings of law or fact. The defendant objected to the rendition of judgment against him, after the judgment was rendered, but made no motion or request, before the judgment was rendered, either for judgment in his favor or for any ruling of law. In a trial without a jury under Revised Statutes of the United States, Secs. 649 and 700 (Comp. St. Secs. 1587, 1668), a general finding of the judge is the equivalent of a verdict of a jury, and is not reviewable on writ of error, even though excepted to by the party against whom it was rendered.
In order to present for review the question as to whether or not the evidence is sufficient to support the judgment of the court, the complaining party must as a predicate, before the judgment is rendered and during the progress of the trial, move the court for judgment in his favor. If he fails to do so, even though he excepts to the judgment after its rendition, the appellate court is without power to review the sufficiency of the evidence, set out in the bill of exceptions, to support the judgment excepted to. The reason of the rule is that in such a case there is no ruling during the progress of the trial, to be presented for review.
As in the case of a judgment upon the verdict of a jury, an exception to the judgment, after it has been rendered, presents nothing for review. Norris v. Jackson, 9 Wall. 125, 19 L.Ed. 608; Insurance Co. v. Folsom, 18 Wall. 237, 21 L.Ed. 827; Martinton v. Fairbanks, 112 U.S. 670, 5 Sup.Ct. 321, 28 L.Ed. 862; St. Louis v. Western Union Telegraph Co., 148 U.S. 92, 13 Sup.Ct. 485, 37 L.Ed. 380, and 166 U.S. 388, 17 Sup.Ct. 608, 41 L.Ed. 1044; Gulf, C. & S.F. Ry. Co. v. Clement Grain Co. (C.C.A. 5th Circuit) 268 F. 535.
An application by the defendant for a judgment in his...
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