First Nat. Bank of San Rafael v. Philippine Refining Corp.

• Decision Date: 13 July 1931
• Docket Number: No. 6417.,6417.
• Citation: 51 F.2d 218
• Parties: FIRST NAT. BANK OF SAN RAFAEL v. PHILIPPINE REFINING CORPORATION OF NEW YORK.
• Court: U.S. Court of Appeals — Ninth Circuit

51 F.2d 218 (1931)

FIRST NAT. BANK OF SAN RAFAEL v. PHILIPPINE REFINING CORPORATION OF NEW YORK.

No. 6417.

Circuit Court of Appeals, Ninth Circuit.

July 13, 1931.

Luther Elkins, of San Francisco, Cal., and Thomas P. Boyd, of San Rafael, Cal. (George M. Naus, of San Francisco, Cal., of counsel), for appellant.

Alfred Sutro, Eugene D. Bennett, and Samuel L. Wright, all of San Francisco, Cal. (Pillsbury, Madison & Sutro, of San Francisco, Cal., of counsel), for appellee.

Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.

WILBUR, Circuit Judge.

Appellant brought an action for the conversion of 7,159 gallons of denatured alcohol valued at $4,152. After written stipulation, the case was tried by the court without a jury on August 28, 1930, and submitted to the court for its decision. On December 12, 1930, the court entered an order for judgment as follows: "Ordered that the plaintiff take nothing, and that the defendant have judgment for its costs of suit. Let judgment be entered accordingly." The same day judgment was entered in accordance with the order, and the appeal is taken from that judgment.

Appellant contends that the uncontroverted evidence justified and required a judgment in its favor, and presents the evidence for our consideration by a bill of exceptions.

The appellee objects to the consideration of the bill of exceptions or the question of the sufficiency of the evidence to justify the judgment in its favor for the reason that that question was not presented to the trial court at the proper time for its determination and that no exception is shown by the record upon which such a contention can be predicated in the appellate court. It appears from the bill of exceptions that at the close of the evidence the defendant (appellee) moved the court for a judgment in its favor. No similar motion was made at that time by the plaintiff (appellant) prior to the submission of the case. The matter was taken under submission upon written briefs. On the 12th of December, 1930, in the November, 1930, term of court, the court made and filed an order "that plaintiff take nothing and that defendant have judgment for costs. No finding, either general or special, was expressly made, nor placed on the record." This recital in the bill of exceptions with reference to the findings of course is modified by the statement with reference to the order filed by the court which was a general finding in favor of the appellant. V. S. & P. Ry. Co. v. Anderson-Tully Co., 256 U. S. 408, 41 S. Ct. 524, 65 L. Ed. 1020; Newlands v. Calaveras Min. & Mill. Co. (C. C. A.) 28 F.(2d) 89. The bill of exceptions shows that, after the judgment was rendered and entered, appellant moved the court "that the Court render judgment for plaintiff, as a matter of law upon the pleadings and evidence, in the sum of $3,006.78." The motion was based upon the insufficiency of the evidence, as a matter of law, to support a judgment in favor of the defendant and that it was sufficient, as a matter of law, to support a judgment for plaintiff. The record recites: "Said motion was denied and the exception allowed and taken." The second motion is of similar purport, that the court make a declaration of law to the effect that the plaintiff was entitled under the pleadings and evidence to a judgment against the defendant for said amount upon the same ground. The third motion to like effect requested the court to make a finding of the facts on the ground that it is the duty of the court to make a general or special finding on the facts and that a judgment without it was unauthorized. These motions were denied "and an exception allowed and taken."

It has been held by this court, in an opinion by Judge Rudkin, and concurred in by Judges Gilbert and Hunt, that under such circumstances this court has no jurisdiction to pass upon the sufficiency of the facts to support a finding. Edwards v. Robinson, 8 F.(2d) 726, 727. The court there said: "There was no motion or request at or before the close of the trial to find generally for the plaintiff, or to make special findings in favor of the plaintiff, and there was no ruling of the court on that question. In this state of the record, it is well settled that an appellate court cannot consider the sufficiency of the testimony to support the findings."

It appears in that case that such a motion was made ten days after the decision of the trial court in favor of the appellee had been announced by the court. The court stated, "Under such circumstances, we are without jurisdiction to consider the sufficiency of the testimony to support the findings." 8 F.(2d) 726, 727, supra.

In view of the contention of the appellant that decisions of the Supreme Court and of the Circuit Court of Appeals for the Eighth Circuit justify and require a further consideration of this point, we will briefly refer to such decisions.

The statutory rule with reference to a review of a civil case tried in a district court without the intervention of a jury provides that 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 upon a writ of error or upon appeal. * * *" 28 USCA § 875. The appellant did not during the trial of the case and at the conclusion of the evidence invoke a ruling by the court as to the sufficiency of the evidence to support or require a judgment in its favor. The situation is substantially the same as though a case at law were submitted to a jury without a motion for a directed verdict in favor of the plaintiff; the determination of controverted facts being left in one case to the judge by stipulation and in the other to the jury as triers of the fact. In either case the judgment of the court upon the legal sufficiency of the evidence must be invoked by proper motion to authorize an appellate court to consider that question. We cite the following decisions by this court upon that proposition: Dunsmuir v. Scott, 217 F. 200; Callan v. U. S. Spruce Production Corp., 28 F.(2d) 770; Newlands v. Calaveras Min. & Mill. Co., 28 F.(2d) 89; Sierra Ld. & Live Stk. Co. v. Desert P. & M. Co., 229 F. 982; Feather River Lbr. Co. v. United States, 30 F.(2d) 642. Appellant seeks to avoid the force of these decisions by the exceptions taken to the denial of the motions made after the judgment was entered. Its claim, in substance, is that, inasmuch as the motions were made after judgment was rendered but during the same term of court, upon its exceptions to the rulings of the trial court refusing to reconsider the matter or grant the motion, we can review the sufficiency of the evidence to sustain the judgment in the same manner and with like effect as if a motion for a judgment upon that ground had been interposed, denied, and exception noted before the rendition of the judgment. This contention seems to find support in two decisions of the Circuit Court of Appeals of the Eighth Circuit. Commonwealth Casualty Co. v. Aichner, 18 F.(2d) 879; McCandless v. Haskins, 28 F. (2d) 693. In both of these cases the evidence was reviewed, and in the first case 18 F.(2d) 879 the judgment was reversed on the ground that the evidence was insufficient to support the judgment, and in the latter 28 F.(2d) 693 the judgment of the lower court was affirmed after consideration of the evidence. These cases are not only in conflict with the above-cited decisions of this court, but also, we think, with other decisions of that court. Wear v. Imperial Window Glass Co., 224 F. 60; United States v. A., T. & S. F. Ry. Co., 270 F. 1; Southern Surety Co. v. United States, 23 F.(2d) 55.

The decision in Commonwealth Casualty Co. v. Aichner, supra, is based upon the decision of the Supreme Court in So. Utah Mines v. Beaver County, 262 U. S. 325, 43 S. Ct. 577, 578, 67 L. Ed. 1004, which dealt with a situation where the case was tried by the court without a jury and no exception was taken and no request was made for special findings or for a declaration of law during the progress of the trial. The trial court gave its decision and general finding orally and directed judgment for the defendant which was duly entered. Nearly three months later, on motion of the plaintiff, and against defendant's objection, the court made and filed special findings of fact. The defendant, before the Supreme Court challenged the power of the court to make these special findings, insisted that they should be disregarded, in which event nothing substantial should be left for review. After stating the fact that the special findings were made at the same term, the court states:

"The rule is that during the term the record is `in the breast of the court' and may be altered during that time in its discretion as justice may require. Goddard v. Ordway, 101 U. S. 745, 752, 25 L. Ed. 1040; Ayres v. Wiswall, 112 U. S. 187, 190, 5 S. Ct. 90, 28 L. Ed. 693; Doss v. Tyack, 14 How. 297, 312, 14 L. Ed. 428; Barrell v. Tilton, 119 U. S. 637, 643, 7 S. Ct. 332, 30 L. Ed. 511; Bassett v. United States, 9 Wall. 38, 41, 19 L. Ed. 548.

"That rule is applicable here and the motion to dismiss is accordingly denied."

This case, it will be observed, goes no further than to hold that during the term of court in which the judgment was rendered the court, in the exercise of its sound discretion, may make special findings, which when made constitute a part of the judgment roll. The question in the case at bar, however, is an entirely different one; that is, must it do so if so requested? It is fundamental that the exercise of the discretion of the trial court is not subject to review on appeal, so that the ruling of the trial court in denying or granting such a motion made after a judgment cannot be reviewed. Here, as appears from the record, appellant made no motion invoking a ruling by the court, no ruling was made by the court and no exception was reserved by the appellant which raised the...