First Nat. Bank v. Litteer

• Decision Date: 09 December 1925
• Docket Number: No. 7018.,7018.
• Parties: FIRST NAT. BANK OF ARDMORE v. LITTEER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

10 F.2d 447 (1925)

FIRST NAT. BANK OF ARDMORE v. LITTEER et al.

No. 7018.

Circuit Court of Appeals, Eighth Circuit.

December 9, 1925.

Earl Q. Gray, of Ardmore, Okl. (H. C. Potterf and J. M. Poindexter, both of Ardmore, Okl., on the brief), for plaintiff in error.

William B. Johnson, of Ardmore, Okl. (Hugh W. McGill, of Ardmore, Okl., on the brief), for defendants in error.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

PHILLIPS, District Judge.

The First National Bank of Ardmore (hereinafter called plaintiff) brought this action against Earl J. Litteer, as receiver of the State National Bank of Ardmore and the State National Bank of Ardmore (hereinafter called defendants), to recover upon a certificate of deposit for the sum of $15,000. The case was tried before the lower court without a jury.

The original certificate of deposit was issued by the State National Bank to the First National Bank of Ardmore on the 21st day of August, 1920. It was thereafter renewed by a new certificate in like amount dated November 22, 1920. The trial court found that, on December 1, 1920, the plaintiff surrendered the latter certificate, and that it took in lieu thereof the note of W. W. Jeter for the sum of $15,000; that thereafter the plaintiff surrendered the above note, and accepted in lieu thereof the note of J. F. Young for $5,000, the note of Fred Ellis for $5,000, the note of W. W. Jeter for $5,000, and the note of D. R. Russell for $720; that the Russell note covered the discount on the other three notes and the accumulated interest on the $15,000 note of Jeter; that the Ellis and Young notes had been paid, and that $500 had been paid on the Jeter note for $5,000.

Upon the foregoing findings, and others, which need not be specifically mentioned, the court entered judgment for the defendants.

At the trial below, counsel for plaintiff did not except to any of the findings, did not request any additional findings, and did not by motion or other like action challenge the sufficiency of the evidence to support the findings.

When a law case is tried to the court without a jury, the questions which are open for review on writ of error are limited by statute. Rev. St. § 649 (Comp. St. § 1587); Rev. St. § 700 (Comp. St. § 1668); Rev. St. § 1011 (Comp. St. § 1672).

This court cannot review the question of the sufficiency of the evidence to support a special finding of fact, where such question was not presented to the trial court and its ruling obtained thereon.

In Wear v. Imperial Window Glass Co. (C. C. A. 8) 224 F. 60, 63, 139 C. C. A. 622, the court said:

"When an action at law is tried without a jury by a federal court, and it makes a general finding, or a special finding of facts, the act of Congress forbids a reversal by the appellate court of that finding, or the judgment thereon, `for any error of fact' (Revised Statutes, § 1011 U. S. Comp. Stat. 1913, § 1672, p. 700), and a finding of fact contrary to the weight of the evidence is an error of fact.

"The question of law whether...