Gartner v. Hays

• Decision Date: 04 May 1921
• Docket Number: 5544.
• Citation: 272 F. 896
• Parties: GARTNER v. HAYS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

272 F. 896

GARTNER v. HAYS et al.

No. 5544.

United States Court of Appeals, Eighth Circuit.

May 4, 1921

Chester Stevens, of Independence, Kan. (Thomas E. Wagstaff, of Independence, Kan., on the brief), for plaintiff in error.

Claud J. Bryant, of Independence, Kan., and H. L. McCune, of Kansas City, Mo. (Thomas H. Stanford, of Independence, Kan., on the brief), for defendants in error.

Before SANBORN and STONE, Circuit Judges, and TRIEBER, District Judge.

SANBORN Circuit Judge.

George Gartner, the plaintiff below and here, the alleged owner of about 600 acres of land in the state of Oklahoma, brought an action at law against the Kansas Oil &amp Gas Company, a corporation, and others, to recover $42,375 which he alleged they owed him on account of their occupation and use of parts of these lands in prospecting for and mining gas and oil therefrom. The defendants below answered that they did not owe the plaintiff more than $666. The parties waived a jury, and the case was tried by the court, which made special findings of fact and rendered a judgment in favor of the plaintiff for $738.75 and interest from February 16, 1917.

Counsel for the plaintiff sued out a writ of error, counsel for the respective parties prepared their briefs and argued the case but when the court came to examine the record it discovered that it presented no reviewable ruling. The first alleged error is the overruling of the motion of the plaintiff for judgment in his favor on the pleadings, but the record discloses no order or ruling on that motion. The second specification is:

'That the United States District Court for the District of Kansas, Third Division, erred in making finding No. 1 of the findings of fact, duly made in said cause on the 21st day of May, 1919.'

Specifications 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 allege in like terms errors in special findings 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, respectively. None of these specifications present any question of law for review, for the reasons stated in United States v. Atchison, Topeka & Santa Fe Ry. Co., 270 F. 1, wherein the opinion of this court was filed on January 12, 1921. To the same effect are Wear v. Imperial Window Glass Co. (8th C.C.A.) 224 F. 60, 63, 139 C.C.A. 622, and cases there cited; Mercantile Trust Co. v. Wood et al. (8th C.C.A.) 60 F. 346, 8 C.C.A. 658.

The thirteenth specification is that the court below erred in its conclusions of law. But...