Duncan v. Atchison, T. & S.F.R. Co.

• Decision Date: 17 February 1896
• Docket Number: 237.
• Citation: 72 F. 808
• Parties: DUNCAN v. ATCHISON, T. & S.F.R. CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

72 F. 808

DUNCAN v. ATCHISON, T. & S.F.R. CO. et al.

No. 237.

United States Court of Appeals, Ninth Circuit.

February 17, 1896

Blanton Duncan, in pro. per.

Wm. J Hunsaker, for defendants in error.

Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District judge.

HAWLEY District Judge.

This is an action at law to recover $50,000 damages alleged to have been sustained by plaintiff in error by reason of certain alleged libelous statements contained in an answer filed by the defendants in error with the interstate commerce commission, to a complaint instituted by the plaintiff at Washington, D.C., charging that defendants had been guilty of certain infractions of the provisions of the interstate commerce act. A demurrer to the jurisdiction, to misjoinder and generally to want of cause of action, was overruled, and thereafter an answer was duly filed. After issue thus joined the cause was tried before the court, 'a jury having been waived, by special leave of the court, by the oral consent of said counsel for all parties, which consent is hereby entered on the minutes. ' The court, after hearing the case found as a fact:

'(3) That all of the allegations of the answer so filed by the defendant of which the plaintiff in this suit complains, were and are privileged, for which reason it is not necessary to find upon any other issue made by the pleadings herein.'

And, as conclusions of law, decided:

'(1) That all of the matters and things herein complained of were and are privileged. (2) That plaintiff take nothing by this action, and that defendants recover of plaintiff their costs and disbursements herein expended.'

Judgment was rendered in accordance therewith in favor of defendants, for their costs.

The record, as presented to this court, contains the judgment roll and assignments of error. It also contains a number of other papers which do not constitute any part of the return to a writ of error. It is affirmatively shown by the judgment roll that evidence, both oral and documentary, was introduced on the part of the respective counsel, but there is nothing properly before us to show what this evidence was. There is no bill of exceptions. There is what purports to be a 'statement of facts,' signed by the plaintiff; but there is nothing to show that it was ever agreed to by counsel, or ever presented to or allowed by the judge.

There are six assignments of error, which may be summarized as follows: (1) The court erred in rendering judgment against plaintiff on the ground that the allegations in the answer were privileged; (2) that the court erred in treating the interstate commerce commission as a court of civil jurisdiction; (3) that the court erred in denying plaintiff's motion to strike out pleading and in rejecting a judgment by default tendered by plaintiff; (4) that the court erred in denying plaintiff's motion to strike from the files the answer of defendants; (5) that the court erred in rendering judgment against plaintiff for the sum of $100 counsel fees, under the provisions of an act of the legislature of the state of California (St. Cal. 1871-72, p. 533); (6) that the court erred in not rendering judgment in favor of plaintiff for the sum of $50,000.

Owing to the incomplete record that has been presented, we are first confronted with certain preliminary questions and objections, which involve our jurisdiction, power, and authority to review any of the assignments of error. The authority of this court to review the judgments of circuit courts by writs of error and bills of exceptions is regulated and controlled exclusively by the acts of congress, and the rules and practice of the United States courts, without regard to the state statutes, or the practice of the state courts. Chateaugay Ore & Iron Co., Petitioner, 128 U.S. 544, 553, 9 Sup.Ct. 150; Andes v. Slauson, 130 U.S. 435, 438, 9 Sup.Ct. 573. The right of review is limited, in the appellate courts of the United States, to questions of law appearing on the face of the record, and does not extend to matters of fact or of discretion. No alleged error concerning the rulings of the circuit court at the trial of a cause by the court without a jury can be examined in the circuit court of appeals, unless it affirmatively appears from the record that there was a written stipulation, signed by the respective counsel, waiving a jury, as required by the statutes of the United States. In Bond v. Dustin, 112 U.S. 604, 5 Sup.Ct. 296, the court said:

'By the act of March 3, 1865, c. 86, Sec. 4, re-enacted in the Revised Statutes, it is provided that issues of fact in civil cases may be tried and determined by the circuit court, without the intervention; of a jury, whenever the parties, or their attorneys of record, file a stipulation in writing, with the clerk of the court, waiving a jury; that the finding of the court upon the facts shall have the same effect as the verdict of a jury; and that its rulings in the progress of the trial, when excepted to at the time, and presented by bill of exceptions, may be reviewed by this court upon error or appeal. 13 Stat. 501; Rev. St. Secs. 649, 700. Before the passage of this statute, it had been settled by repeated decisions that in any action at law in which the parties waived a trial by jury, and submitted the facts to the determination of the circuit court upon the evidence, its judgment was valid, but that this court had no authority to revise its opinion upon the admission or rejection of testimony, or upon any other question of law growing out of the evidence, and therefore, when no other error appeared on the record, must affirm the judgment. Guild v. Frontin, 18 How. 135; Kelsey v. Forsyth, 21 How. 85; Campbell v. Boyreau, 21 How. 223. The reason for this, as stated by Chief Justice Taney in Campbell v. Boyreau, was that, 'by the established and familiar rules and principles which govern common-law proceedings, no question of law can be reviewed and re-examined in an appellate court, upon writ of error (except only where it arises upon the process, pleadings, or judgment in the cause), unless the facts are found by a jury, by a general or special verdict, or are admitted by the parties upon a case stated in the nature of a special verdict, stating the facts and referring the questions of law to the court.' 21 How. 226. Even in actions duly referred by rule of court to an arbitrator, only rulings and decisions in matter of law after the return of the award were reviewable. Thornton v. Carson, 7 Cranch, 596, 601; Alexandria Canal Co. v. Swann, 5 How. 83; York & C.R. Co. v. Myers, 18 How. 246; Heckers v. Fowler, 2 Wall. 123. Since the passage of this statute, it is equally well settled, by a series of decisions, that this court cannot consider the correctness of rulings at the trial of an action by the circuit court without a jury, unless the record shows such a waiver of a jury as the statute requires, by stipulation in writing, signed by the parties or their attorneys, and filed with the clerk. Flanders v. Tweed, 9 Wall. 425; Kearney v. Case, 12 Wall. 275; Gilman v. Telegraph Co., 91 U.S. 603, 614; Madison Co. v. Warren, 106 U.S. 622, 2 Sup.Ct. 86; Alexander Co. v. Kimball, 106 U.S. 623, note 2 Sup.Ct. 86.'

In Rush v. Newman, 7 C.C.A. 136, 58 F. 158, 160, the circuit court of appeals said:

'There is in the record what purports to be a special finding of the facts by the court. But the record does not show that the parties, or their attorneys of record, filed with the clerk a stipulation in writing waiving a jury, as required by section 649 of the Revised Statutes of the United States. The recital in the record that 'both parties, in open court having

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