Citizens' Bank of Wichita v. Farwell, 213.

• Decision Date: 29 May 1893
• Docket Number: 213.
• Parties: CITIZENS' BANK OF WICHITA v. FARWELL et al.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F. 570

CITIZENS' BANK OF WICHITA v. FARWELL et al.

No. 213.

United States Court of Appeals, Eighth Circuit.

May 29, 1893

Statement by CALDWELL, Circuit Judge:

John V Farwell & Co. commenced suit in the circuit court of the United States for the district of Kansas, second division against the Kansas Furniture Company, hereafter called the 'Furniture Company,' to recover the sum of $8,926.20 and interest, and sued out in said action a writ of garnishment against the Citizens' Bank of Wichita, Kan., hereafter called the 'Bank.' On the 5th day of March, 1891, plaintiffs recovered judgment against the furniture company for the sum of $9,843.04. Upon being served with the garnishee summons, the bank appeared and filed an answer, denying that it was indebted to the furniture company in any sum. Issue was joined on the bank's answer, and, a jury being waived, the cause was tried by the court, which made a special finding of facts, and rendered judgment thereon in favor of the plaintiffs, and against the garnishee, for $10,988.80. The bank thereupon sued out this writ of error.

W. E. Stanley and J. E. Hume, for plaintiff in error.

C. H. Brooks, C. F. Coffin, and Edwin White Moore, for defendants in error.

CALDWELL Circuit Judge, (after stating the facts as above.)

It is objected by the defendants in error that the parties, or their attorneys of record, did not file with the clerk a stipulation in writing waiving a jury, as required by section 649 of the Revised Statutes of the United States; and that this court cannot therefore consider the assignment of error based on the insufficiency of the special finding of facts by the lower court to support the judgment. The record before us contains this entry:

'Thereupon, afterwards, to wit, on the 9th day of March, 1892, the said plaintiffs appeared by Edwin White Moore and Brooks & Coffin, their attorneys, and the said defendant garnishee, the Citizens' Bank of Wichita, Kansas, appears by Stanley & Hume, its said attorneys, and the parties make and file their agreement in writing with the clerk that this cause may be tried by the court without a jury, and which agreement is in words and figures following.'

The agreement here referred to is properly entitled in the cause, and is spread at large upon the record. It extends to other matters besides the waiver of a jury. That part of it relating to the waiver of a jury is in these words:

'The parties appearing by their respective counsel, Messrs. Edwin White Moore and Brooks & Coffin appearing for the plaintiff, and Messrs. Stanley & Hume appearing for said defendant and said garnishee, said parties, in open court, waived a jury, and consented that said cause be tried by the court.'

The signatures of counsel, preceded by the letters 'O. K.,' are attached to this agreement. It is in writing, and was filed with the clerk; but it said that counsel, in signing the agreement, only intended to O. K. the correctness of the record entry, and did not thereby intend to waive a jury. If counsel did not, by their signatures to this agreement or record entry,--and it is immaterial which it is called,--intend to attest the fact, in writing, that a jury had been waived, it is difficult to understand what was intended. They, of course, did not intend to mislead or deceive the court, though, if their present contention should be sustained, their action would have precisely that result; for the court acted upon the understanding that a jury had been waived in the mode required by the statute, and, acting upon that assumption, made an extended special finding of facts, which was altogether useless and unnecessary if there had been no such waiver. The distinction attempted to be drawn by counsel between signing an agreement waiving a jury which is not intended to be spread upon the record and signing one that is to constitute the record entry is too subtle and refined to require any further consideration. Supervisors v. Kennicott, 103 U.S. 554-556.

In some of the papers and record entries in the cause, the plaintiffs are described as J. V. Farwell & Co., in some as J. V. Farwell et al., and in some the names of the five persons composing the firm are set out in full, with the averment that they constitute a copartnership, under the firm name of John V. Farwell & Co. In one of the latter papers or entries, the name of John K. Hannon, one of the members of the firm, appears as John K. Harmon, and a large part of a lengthy brief filed on behalf of the plaintiff in error is taken up with the contention that the cause should be reversed on account of this trifling clerical error. There is no reason to suppose the name was not written correctly in the original manuscript, but, conceding that it was not, it is an obvious clerical misprision, capable of correction from an inspection of the record, and which any court would correct upon a mere suggestion. Adams v. Law, 16 How. 144; Peale v. Phipps, 8 How. 256; Bank v. Mixter, 114 U.S. 463, 5 S.Ct. 944. It is to be deplored that an appellate court should be called upon to listen to an oral argument and read a lengthy brief in support of the contention that such a slight clerical or typographical error is fatal, and it would be discrediting to the administration of justice for any court to notice the alleged error further than to direct its correction.

It is assigned for error that the court had no jurisdiction of the subject-matter of the suit or the parties. This assignment of error rests upon the following ground: By the law of the state of Kansas, as it stood prior to 1889, when the plaintiff in the action desired to contest the answer of one summoned as a garnishee, he was required to file a petition, and summon the garnishee to answer thereto, as in an ordinary action at law. By an amended statute, passed in 1889, it is provided that the answer of the garnishee shall be conclusive of the facts therein stated, unless the plaintiff, within 20 days, serves upon the garnishee a notice in writing that he elects to take issue on his answer, 'in which case the issue shall stand for trial as a civil action in which the affidavit on the part of the plaintiff shall be deemed the petition and the garnishee's affidavit the answer thereto.' Paragraph 4290, Gen. St. Kan. 1889. The statute was amended in some other particulars, but the amendment we have particularly set out is the only one pressed upon our attention, and is the one upon which the exception is chiefly rested. The bank was summoned as garnishee after the act of 1889 took effect, and the issue between the plaintiff and the garnishee was made up, and the cause was tried, without objection, in the mode provided by that act. It is now said that the circuit court of Kansas had not by a general rule adopted the act of 1889, as required by section 915 of the Revised Statutes of the United States, and that, as a consequence, it was without jurisdiction to proceed in the mode that it did, and that its judgment is void.

Section 914 of the Revised Statutes of the United States provides that 'the practice, pleading, and forms and modes of proceeding in civil causes in the circuit and district courts shall conform as near as may be to the practice, pleading, and forms and modes of proceeding existing at the time in like causes in the courts of record of the states wherein such circuit or district courts are held, any rule of court to the contrary nowithstanding.'

All the modes of proceeding in...