Bowden v. Burnham

• Decision Date: 29 January 1894
• Docket Number: 273,274.
• Citation: 59 F. 752
• Parties: BOWDEN et al. v. BURNHAM et al. BARNES et al. v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

59 F. 752

BOWDEN et al. v. BURNHAM et al.

BARNES et al. v. SAME.

Nos. 273, 274.

United States Court of Appeals, Eighth Circuit.

January 29, 1894

C. N Sterry, for plaintiffs in error.

W. H Rossington, Charles Blood Smith, E. J. Dallas, H. C. Soloman and William T. Bland, for defendants in error.

Before CALDWELL, Circuit Judge, and THAYER, District Judge.

CALDWELL Circuit Judge.

The defendants in error, Burnham, Hanna, Munger & Co., citizens of the state of Missouri, brought suit by attachment against plaintiffs in error, A. S. Bowden and R. A. Bowden, individually and as partners, citizens of Kansas, on notes and accounts for various sums, amounting in the aggregate to $2,764.56, $11.35 of which was due, and the balance not due. The judge made an order allowing an attachment for the aggregate sum, and the clerk issued the writ accordingly. As to some of the notes and accounts sued on, the plaintiffs sued as assignees. The original complaint failed to state the citizenship of the assignors, but an amended complaint was filed by leave of the court, which showed that the assignors were citizens of states other than Kansas. The defendants filed an answer containing a general denial, and alleging (1) that the assignment to the plaintiffs of the claims sued upon was merely colorable, and made for the purpose of giving the court jurisdiction; (2) that there was an improper joinder of defendants; (3) traversed the affidavit upon which the attachment was procured; (4) averred that the court had no jurisdiction, because the assignors of the claims sued on could not have brought suit thereon in the circuit court, the claims taken separately being less than $2,000 in amount, and that, deducting the amount of the assigned claims, the amount in controversy was less than $2,000; (5) that there was a misjoinder of causes of action, by uniting a claim for $11.35, which was due, with claims amounting to over $2,700 which were not due. The defendants also filed a motion to discharge the attachment upon the ground that the court had no jurisdiction of the action or the subject-matter, or over the property attached, and that the allegations in the affidavit upon which the attachment was granted were not true. The plaintiffs filed a replication to the answer, and thereupon, by a stipulation in writing filed with the clerk in conformity to section 649 of the Revised Statutes, a jury was waived, and all the issues in the cause submitted to the court, which found a general verdict for the plaintiffs, and rendered judgment accordingly.

The record purports to contain all the evidence, and it is said in the brief filed on behalf of the plaintiffs in error that this court can review the decision of the lower court upon the evidence, and most of the briefs of counsel on both sides are taken up with the discussion of the evidence in the case. But, upon the record before us, we cannot look into the evidence. When a case is tried by the court without a jury, a general finding of the court has the same effect as the verdict of a jury, and is conclusive in this court as to the facts. Such a finding cannot be reviewed in this court by a bill of exceptions, or in any other manner. It prevents all inquiry in this court into the special facts and conclusions of law upon which the finding rests. Norris v. Jackson, 9 Wall. 125; Miller v. Insurance Co., 12 Wall. 285, 297; Insurance Co. v. Folsom, 18 Wall. 237; Martinton v. Fairbanks, 112 U.S. 670, 5 S.Ct. 321; Boardman v. Toffey, 117 U.S. 271, 6 S.Ct. 734; Lehnen v. Dickson, 148 U.S. 71, 13 S.Ct. 481.

In Cooper v. Omohundro, 19 Wall. 65, the supreme court said:

'Where issues of fact are submitted to the circuit court, and the finding is general, nothing is open to review, * * * except the rulings of the circuit court in the progress of the trial; and the phrase, 'rulings of the court in the progress of the trial,' does not include the general finding of the circuit court, nor the conclusions of the circuit court embodied in such general finding.'

In the case of Martinton v. Fairbanks, supra, the court say:

'The theory of the plaintiff in error seems to be that the general finding in this case, like a general verdict, includes questions of both law and fact, and that by excepting to the general finding he excepts to such conclusions of law as the general finding implies. But section 649, Rev. St., provides that the finding of the court, whether general or special, shall have the same effect as the verdict of a jury. The general verdict of a jury concludes mixed questions of law and fact, except so far as they may be saved by some exception which the party has taken to the ruling of the court upon a question of law. * * * The provision of the statute that the finding of the court shall have the same effect as the verdict of a jury cuts off the right to review in this case.'

The objection that one of the debts sued for, amounting to $11.35, was due, and the others not due, and that the judge's order allowing the attachment included the debt due as well as those not due, was properly overruled. O'Connell v. Reed, 5 C. C. A. 586, 56 F. 531.

The objection to the jurisdiction of the court is grounded on the fact that the original petition did not disclose that the assignors of the claims which the plaintiffs sued on as assignees were citizens of states other than Kansas, and the further fact that, rejecting those claims, the amount claimed by the plaintiffs was less than $2,000. But the court very properly granted the plaintiffs leave to amend their complaint, (section 954, Rev. St. U. S.,) and it was amended. Nevertheless, the plaintiff in error asserts that as the complaint, at the time the attachment was issued, did not contain the necessary jurisdictional averments, every step taken in the cause prior to the amendment was void, and that the amendment of the complaint could not impart vitality or validity to anything done before the amendment was made. This contention is wholly untenable. It is every-day practice to allow amendments of the character of those made in this case, and when they are made they have relation to the date of the filing of the complaint or the issuing of the writ or process amended. When a complaint is amended, it stands as though it had originally read as amended. The court in fact had jurisdiction of the cause from the beginning, but the complaint did not contain the requisite averments to show it. In other words, the amendment did not create or confer the jurisdiction; it only brought on the record a proper averment of a fact showing its existence from the commencement of the suit.

The right of the federal court to allow amendments under section 954 of the Revised Statutes of the United States is well settled.

The right exists quite independently of any state statute, and may be exercised at any stage of the...