Eastern Oil Co. v. Holcomb

• Decision Date: 23 February 1914
• Docket Number: 3963.
• Parties: EASTERN OIL CO. v. HOLCOMB et al.
• Court: U.S. Court of Appeals — Eighth Circuit

212 F. 126

EASTERN OIL CO. v. HOLCOMB et al.

No. 3963.

United States Court of Appeals, Eighth Circuit.

February 23, 1914

[Copyrighted Material Omitted]

John H Carter, of Tulsa, Okl. (Robert J. Boone, of Tulsa, Okl., and George C. Butte and Sam H. Lattimore, both of Muskogee, Okl on the brief), for plaintiff in error.

George S. Ramsey, of Muskogee, Okl. (C. L. Thomas, of Muskogee, Okl., on the brief), for defendants in error.

Before SANBORN and CARLAND, Circuit Judges, and RINER, District Judge.

CARLAND Circuit Judge.

Holcomb and Hall brought suit against the oil company to recover the sum of $3,200 alleged to be due them as the purchase price of an oil and gas mining lease. The suit was commenced in the United States Circuit Court for the Eastern District of Oklahoma, February 9, 1911, and tried in the United States Circuit Court for said district, June 12, 1912. By stipulation in writing the case was tried and determined by the court without the intervention of a jury. The court heard the evidence and made special findings of fact and conclusions of law which resulted in a judgment in favor of Holcomb and Hall. The oil company has removed the case here by writ of error.

It is urged by counsel for Holcomb and Hall that this court has no power to review the errors assigned, for the reason that section 566, R.S.U.S. (U.S. comp. St. 1901, p. 461), provides that 'the trial of issues of fact in the District Courts, in all causes except. * * * shall be by jury,' and that no authority has ever been given said courts to try issues of fact without the intervention of a jury. It is true that prior to January 1, 1912, there had been no provision made by law for the trial of issues of fact in the District Court, by the court, without the intervention of a jury. Therefore it has been uniformly decided that if the parties to a civil action in the District Court, by agreement, submitted the questions of fact in dispute to a judge for decision upon the evidence, he did not exercise judicial authority in deciding, but acted rather in the character of an arbitrator, and no review of his decision could be had. Rogers v. United States, 141 U.S. 548, 12 Sup.Ct. 91, 35 L.Ed. 853; United States v. Cleage, 161 F. 85, 88 C.C.A. 249 (8th Ct.); United States v. Louisville & N.R. Co., 167 F. 306, 93 C.C.A. 58 (6th Ct.); St. Joseph Stockyards Co. v. United States, 187 F. 104, 110 C.C.A. 432 (8th Ct.). It is claimed that this is still the law in the District Courts, for the reason that section 649, R.S.U.S. (U.S. Comp. St. 1901, p. 525), which provides that issues of fact in civil cases in any Circuit Court may be tried and determined by the court, without the intervention of a jury, does not apply. We think counsel are in error in this contention. Section 291 of the Judicial Code reads as follows:

'Wherever, in any law not embraced within this act, any reference is made to, or any power or duty is conferred or imposed upon, the Circuit Courts, such reference shall, upon the taking effect of this act, be deemed and held to refer to, and to confer such power and impose such duty upon, the District Courts.'

This section clearly confers upon the District Courts the power to try issues of fact by the court as provided in section 649. It is claimed, however, that if this be so section 649 and section 566, which has not been repealed, are repugnant to each other. This is not so. Section 648, R.S.U.S. (U.S. Comp. St. 1901, p. 525), provided for trial by jury in the Circuit Courts in practically the same language as 566 did in the District Courts, but section 649 has never been considered as repugnant to section 648. Section 566 or 648, when read in connection with section 649, must be construed as declaring that the trial of issues of fact in the District Courts shall be by jury, except where the parties shall stipulate in writing to waive a jury. Section 649 provides that where a jury is waived, as was done in this case, 'the finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury. ' Section 700, R.S.U.S. (U.S. Comp. St. 1901, p. 570) which is applicable to this court, as well as the Supreme Court, provides as follows:

'When an issue of fact in any civil cause in a Circuit Court is tried and determined by the court without the intervention of a jury, according to section 649, the rulings of the court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed by the Supreme Court upon a writ of error or upon appeal; and when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment.'

We thus see that it is the rulings of the court in the progress of the trial of the cause, if excepted to at the time, that we have the power to review. No rulings to which counsel for the oil company excepted during the trial appear in the record except certain rulings in relation to the admission and exclusion of evidence and the ruling of the court in overruling in part the demurrer of the oil company to the complaint. These rulings, although assigned as error, have not been argued either orally or in the brief; but the 57 assignments of error have been combined together and argued to the court under the heads of 'Mutual Mistake,' 'Implied Warranty of Title,' and 'Breach of Warranty.' In other words, the case is presented to us as if we were a court of original jurisdiction empowered to try the case upon its merits as was the District Court. Counsel for the oil company did object as is shown by the record to the proposed findings of fact requested by counsel for Holcomb and Hall; but the record shows no ruling of the court upon the same, and whether the objections were sustained or overruled nowhere appears. The court subsequently made findings of its own, and this court could not be expected to go through the record and ascertain for itself whether or not the court sustained or overruled the objections to the proposed findings. Another reason why the objections to the proposed findings do not call upon us to consider the same is that nowhere in the brief is the point made or argued that the findings of the court are not sustained by the evidence. The rule in such cases is that, if counsel declines to argue questions presented by the record, the court will not further consider them. The findings of the court under the statute had the same effect as the special verdict of...