Erkel v. United States

• Citation: 169 F. 623
• Decision Date: 03 May 1909
• Docket Number: 1,666.
• Parties: ERKEL v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

169 F. 623

ERKEL v. UNITED STATES.

No. 1,666.

United States Court of Appeals, Ninth Circuit.

May 3, 1909

Sidney Dell, for plaintiff in error.

Oscar Lawler, U.S. Dist. Atty.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

This case comes here upon writ of error to review a judgment rendered in an action of ejectment brought by the plaintiff in error against the defendant in error after a trial without a jury in the court below; there having been no written stipulation waiving a jury trial. The assignments of error raise the question of the sufficiency of the evidence to sustain the findings on which the judgment was based.

It is well settled that no question of law can be reviewed on error, except those arising upon the process, pleadings, or judgment, 'unless the facts are found by a jury by a general or special verdict, or are admitted by the parties upon a case stated. ' Campbell v. Boyreau, 21 How. 223, 16 L.Ed. 96. In that case it was held that the finding of issues of fact by the court upon the evidence is altogether unknown to a common-law court, and cannot be recognized as a judicial act. The court said:

'And this court therefore cannot regard the facts so found as judicially determined in the court below, nor examine the questions of law, as if those facts had been conclusively determined by a jury or settled by the admission of the parties.'

The court further held that no exceptions are to be taken pending a trial, 'unless a jury was actually impaneled and the exception reserved while they were still at the bar. ' That decision was had prior to the enactment of the statute which is carried into the Revised Statutes as sections 649 and 700 (U.S. Comp. St. 1901, pp. 525, 570). Those sections provide 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 whenever the parties or their attorneys of record file with the clerk a stipulation in writing waiving a jury, that the finding of the court on the facts shall have the same effect as the verdict of a jury and that, where a case is so tried, the rulings of the court in the progress of the trial, if excepted to at the time and duly presented by a bill of exceptions, may be reviewed on writ of error, and, when the finding is special, the review may extend to the determination of the sufficiency of the facts found to support the judgment. Under that statute it has been uniformly held that if a case is tried before the court without a jury, and there is no written stipulation waiving a jury, none of the questions decided at the trial can be re-examined in an appellate court on writs of error. Kearney v. Case, 12 Wall. 275, 20 L.Ed. 395; County of Madison v. Warren, 106 U.S. 622, 2 Sup.Ct 86, 27 L.Ed. 311; Bond v. Dustin, 112 U.S. 604, 5 Sup.Ct. 296, 28 L.Ed. 835; Branch et al. v. Texas Lumber Co., 4 C.C.A. 52, 53 F. 849; Merrill v....