Ford v. Grimmett

• Decision Date: 04 February 1922
• Docket Number: 3682.
• Parties: FORD v. GRIMMETT.
• Court: U.S. Court of Appeals — Fifth Circuit

278 F. 140

FORD v. GRIMMETT.

No. 3682.

United States Court of Appeals, Fifth Circuit.

February 4, 1922

Frank J. Looney, J. M. Foster, and W. A. Wilkinson, all of Shreveport, La., for plaintiff in error.

J. S Atkinson and J. M. Grimmet, both of Shreveport, La., for defendant in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

BRYAN Circuit Judge.

Judgment was entered for the defendant in error, who was plaintiff below, upon his petition to recover from plaintiff in error possession of a certain tract of land. The petition alleged title in defendant in error under a homestead entry and a patent from the United States. The plaintiff in error alleged in his answer that the land in dispute was included in the swamp and overflowed lands granted by the act of Congress of March 2, 1849 (9 Stat. 352), to the state of Louisiana, and claimed title by mesne conveyances from the state.

The judgment recites that the parties waived a jury, and that the case was regularly tried by the court. The record does not contain a bill of exceptions, agreed statement of facts, or findings of fact. It does contain unauthenticated notes which purport to contain the evidence submitted at the trial and also an opinion of the District Judge. We have nothing before us, therefore, except the petition and the answer, by which to test the correctness of the judgment. Texas Ranger, etc., Co. v. Robinson (C.C.A.) 272 F. 453.

Error is assigned upon the refusal of the court to hold that the act of Congress vested title to the land in dispute in the state. By the Judiciary Act of 1789 (1 Stat. 73) the trial of issues of fact in common-law actions in District Courts was required to be by jury. By section 4 of the act of Congress of March 3, 1865, now sections 649 and 700 of the Revised Statutes (Comp. St. Secs. 1587, 1668), it was provided 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.'

This later act, however, did not affect proceedings in District Courts until it was made applicable to them by section 291 of the Judicial Code (Comp. St. Sec. 1268). Rogers v. United States, 141 U.S. 548, 12 Sup.Ct. 91, 35 L.Ed. 853; Campbell v. United States, 224 U.S. 99, 32 Sup.Ct. 398, 56 L.Ed. 684; Ex parte United States, 226 U.S. 420, 33 Sup.Ct. 170, 57 L.Ed. 281.

The act of Congress of May 26, 1824, 4 Stat. 62, adopted for United States courts in Louisiana the practice of the courts of that state; but since 1865 the practice in federal courts sitting in that state, as to the trial of cases before the court without a jury, has been in accordance with sections 649 and 700 of the Revised Statutes. Mutual Insurance Co. v. Tweed, 7 Wall. 44, 19 L.Ed. 65; Flanders v.

Tweed, 9 Wall. 425, 19 L.Ed. 678; Generes v. Campbell, 11 Wall. 193, 20 L.Ed. 110; Kearney v. Case, 12 Wall. 275, 20 L.Ed. 395.

Neither the Judiciary Act of 1789 not the act of 1865 operated to deprive litigants of the privilege of submitting cases to District or Circuit Courts for determination without the intervention of a jury. Campbell v. United States, 224 U.S. 99, 32 Sup.Ct. 398, 56 L.Ed. 684; Kearney v. Case, supra. Since the enactment of the judicial Code in 1911, which abolished Circuit Courts and conferred their powers and duties upon District Courts, two methods of trial exist before a District Court without a jury. One is independent of statute, while the other is provided for by sections 649 and 700 of the Revised Statutes.

A stipulation in writing is essential to secure a trial under these statutory provisions. 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; Abraham v. Levy, 72 F. 124, 18 C.C.A. 469. Because of the failure of the record to disclose the waiver of a jury by stipulation in writing, it necessarily follows that this case is to be considered as not having been tried under sections 649 and 700, but by that other method which is independent of statute.

In speaking of the mode of procedure which the parties must be presumed to have adopted, the Supreme Court said, in Campbell v. Boyreau, 21 How. 223, 16 L.Ed. 96:

'The finding of issues in fact by the court upon the evidence is altogether unknown to a common-law court, and cannot be recognized as a judicial act. Such questions are exclusively within the province of the jury; and if, by agreement of parties, the questions of fact in dispute are submitted for decision to the judge upon the evidence, he does not exercise judicial authority in deciding, but acts rather in the character of an arbitrator. 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 the admission of the parties. Nor can any exception be taken to an opinion of the court upon the admission or rejection of testimony, or upon any other question of law which may grow out of the evidence, unless a jury was actually impaneled, and the exception reserved while they were still at the bar. The statute which gives the exception in a trial at common law gives it only in such cases. And as this court cannot regard the facts found by the judge as having been judicially determined in the court below, there are no facts before us upon which questions of law may legally and judicially have arisen in the inferior court, and no

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