Boatmen's Bank v. Trower Bros. Co.

• Decision Date: 19 September 1910
• Docket Number: 3,283.
• Citation: 181 F. 804
• Parties: BOATMEN'S BANK v. TROWER BROS. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

181 F. 804

BOATMEN'S BANK v. TROWER BROS. CO.

No. 3,283.

United States Court of Appeals, Eighth Circuit.

September 19, 1910

Syllabus by the Court.

A motion for a new trial, indispensable under the state practice, is not essential to a review of the rulings of the trial courts under the federal practice.

The means of review of the rulings of the national courts are prescribed by the acts of Congress, the ancient English statutes, and the rules and practice of the courts of the United States, and they are neither controlled nor affected by the act of conformity (Rev. St. Sec. 649 (U. S. Comp. St. 1901, p. 525)), the statutes of the states, or the practice of their courts.

Federal courts following state practice as to procedure on appeal see note to Nederland Life Ins. Co. v. Hall, 27 C.C.A. 394.)

Although the statute of a state required exceptions to the report of a referee in actions at law in its courts to be filed within four days in term after the filing of the report, it was not error for the federal trial court to extend the time for filing exceptions for a defeated party, who had received no notice of the time of filing within the four days, for the period of seven days, and to consider exceptions filed within this extension of time.

The act of conformity (Rev. St. Sec. 649 (U. S. Comp. St. 1901, p 525)) does not require the Circuit and District Courts to conform their practice or procedure to that of the state courts, where such conformity in their judgment 'would unwisely incumber the administration of the law or tend to defeat the ends of justice in their tribunals.'

Where the statute of a state, which under the conformity act prescribes the practice in the federal court in an action at law, requires a referee to return the evidence taken before him with his report, the legal presumption in the appellate court, in the absence of evidence in the bill of exceptions or otherwise to the contrary, is that he complied with the statute and did so.

A bill of exceptions by the referee is not essential to a review in the United States Circuit Court of the rulings of a referee in his trial of an action at law in Missouri, because the Missouri statute requires the referee to set forth all exceptions to his rulings and the particulars thereof in his report, and to return all the evidence taken before him to the court.

Where the writ of error challenges the rulings of the Circuit Court on exceptions to a referee's report in an action at law a bill of exceptions which sets forth the evidence which conditioned those rulings is indispensable to their review in an appellate court.

A stipulation to commit to a referee for trial and decision issues of fact in an action at law, which the court is without power to try or to refer without the consent of the parties, gives the court no authority to try those issues after the avoidance of the findings of the referee for error of law, but entitles the parties to a new trial by their chosen referee under proper instructions from the court upon questions of law alone.

A trial by a consent referee is reviewable by the trial court, if there is no substantial evidence to sustain his findings of fact, and for other errors of law. But the questions of fact are committed to the judgment of the referee, and if there is substantial evidence to support his findings the court may not avoid them, because in its judgment the evidence is insufficient to support them, or preponderates against them.

J. S. Botsford (Buckner F. Deatherage and Goodwin Creason, on the brief) for plaintiff in error.

J. C. Petherbridge, for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN Circuit Judge.

The questions in this case involve the extent and method of review of a trial by a consent referee of an action at law in the national courts. The seventh amendment to the Constitution provides that in suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law. The only instance in which the finding of a fact by a jury may be reexamined and avoided by a court is where there is no substantial evidence to sustain it, and the review of the findings of fact in an action at law by a court, or a consent referee, is limited by the same restriction. Hecker v. Fowler, 2 Wall. 123, 129, 130, 133, 17 L.Ed. 759; Newcomb v. Wood, 97 U.S. 581, 583, 24 L.Ed. 1085; Boogher v. Insurance Co., 103 U.S. 90, 93, 94, 96, 98, 26 L.Ed. 310; United States v. Ramsey (C.C.) 158 F. 488, 491, 493, 498; Campbell v. Equitable Life Assur. Soc., 130 F. 786, 787; Tyler v. Angevine, 24 Fed.Cas. 458, 461 (No. 14,306).

The acts of Congress contain no grant of power to the national courts courts to delegate to referees the authority to try actions at law. They provide, however, that the parties to any such civil action may stipulate in writing that any issue of fact therein may be tried by the court without a jury, and that in such case the finding of the court upon the facts shall have the same effect as the verdict of a jury (Rev. St. Sec. 649 (U. S. Comp. St. 1901, p. 525)), and that the practice, pleadings, forms, and modes of proceeding in civil causes other than equity and admiralty causes in the Circuit and District Courts shall conform as near as may be to the practice and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such Circuit and District Courts are held. Rev. St. Sec. 914 (1 U.S. Comp. St. 1901, p. 684). But this act of conformity (section 914) does not apply to the practice or proceedings of the national appellate courts, or to bills of exceptions, motions for new trials, or any other means adopted to review the judgments or rulings of the trial courts of the United States. The power and practice of the national appellate courts are derived exclusively from the Constitution, the acts of Congress, the ancient English statutes, and the rules and practice of the courts of the United States, and this practice may neither be extended nor contracted, controlled, nor affected by the statutes of the states or the practice of their courts. Francisco v. Chicago & Alton R. Co., 149 F. 354, 358, 359, 79 C.C.A. 292, 296, 297; Chateaugay Iron Co., Petitioner, 128 U.S. 544, 554, 9 Sup.Ct. 150, 32 L.Ed. 508; Hudson v. Parker, 156 U.S. 277, 281, 15 Sup.Ct. 450, 39 L.Ed. 424; City of Manning v. German Ins. Co., 107 F. 53, 55, 57, 46 C.C.A. 144, 146, 148; Hooven, Owens & Rentschler Co. v. John Featherstone's Sons, 49 C.C.A. 229, 235, 111 F. 81, 87; Louisville & N. Ry. Co. v. White, 40 C.C.A. 352, 356, 100 F. 239, 243; West v. East Coast Cedar Co., 51 C.C.A. 411, 415, 113 F. 737, 741; St. Clair v. United States, 154 U.S. 134, 153, 14 Sup.Ct. 1002, 38 L.Ed. 936; Boogher v. Insurance Co., 103 U.S. 90, 95, 26 L.Ed. 310; Newcomb v. Wood, 97 U.S. 581, 24 L.Ed. 1085; Fishburn v. Railway Co., 137 U.S. 60, 11 Sup.Ct. 8, 34 L.Ed. 585; Kentucky Life, Acc. & Ins. Co. v. Hamilton, 63 F. 93, 98, 11 C.C.A. 42, 47; Elder v. McClaskey, 17 C.C.A. 259, 278, 70 F. 529, 556; Ghost v. United States, 168 F. 841, 843, 94 C.C.A. 253, 255; Connecticut Fire Ins. Co. v. Manning (C.C.A.) 177 F. 893, 896.

Nor does this act of conformity even require the Circuit and District Courts to conform their practice or procedure in matters which do not relate to methods of review to those of the state courts, where such conformity in their judgment 'would unwisely incumber the administration of the law, or tend to defeat the ends of justice in their tribunals. ' Railway Company v. Horst, 93 U.S. 291, 299, 300, 23 L.Ed. 898; O'Connell v. Reed, 56 F. 531, 536-539, 5 C.C.A. 586, 592; Times Publishing Co. v. Carlisle, 36 C.C.A. 475, 484, 94 F. 762, 771.

This is an action of trover and conversion of cattle that the plaintiff and defendant respectively claim under adverse mortgages, and the issues were the identity of the cattle described in the respective mortgages and the superiority of their respective liens. The referee found these issues in favor of the plaintiff below, and filed his report, which set forth these findings and a recommendation of a judgment accordingly. The Circuit Court sustained exceptions to the findings of fact of the referee, and an exception to the introduction in evidence of a report regarding the ownership of the cattle made by one Kelly, and rendered a judgment for the defendant. To reverse this judgment the plaintiff sued out a writ of error; but the defendant insists that it is entitled to no consideration by this court of the errors assigned, because it made no motion for a new trial, and under the practice of the courts of the state of Missouri a motion for a new trial is indispensable to a review of the rulings of the trial court. State ex rel. v. Hurlstone, 92 Mo. 327, 5 S.W. 38; Maloney v. Missouri Pac. Ry. Co., 122 Mo. 106, 115, 26 S.W. 702; State ex rel. v. Burckhartt, 83 Mo. 430. The position of the defendant is untenable, because, as we have seen, the practice and proceedings of the federal courts relating to motions for new trials, bills of exceptions, and other means of review of the judgments of the Circuit and District Courts are not governed, controlled, or affected by the act of conformity, or by the practice or proceedings in like causes in the state courts, but by the acts of Congress, the ancient English statutes, and the rules and practice of the courts of the United States.

The plaintiff's first specification of error is that the court below, after the lapse of more than four days in term subsequent to the filing of the referee's report,...