Graver Corporation v. Hercules Gasoline Co.

• Decision Date: 08 February 1927
• Docket Number: No. 4859.,4859.
• Citation: 16 F.2d 459
• Parties: GRAVER CORPORATION v. HERCULES GASOLINE CO.
• Court: U.S. Court of Appeals — Ninth Circuit

16 F.2d 459 (1926)

GRAVER CORPORATION v. HERCULES GASOLINE CO.

No. 4859.

Circuit Court of Appeals, Ninth Circuit.

December 20, 1926.

As Modified February 8, 1927.

Wilbur Bassett and Carroll Allen, both of Los Angeles, Cal., for plaintiff in error.

McComb & Hall, Marshall F. McComb, and John M. Hall, all of Los Angeles, Cal., for defendant in error.

Before GILBERT and RUDKIN, Circuit Judges, and NETERER, District Judge.

NETERER, District Judge.

A petition is filed for a rehearing, on the ground that this court was without jurisdiction to review any questions except those arising on the process, pleadings, or judgment, since there was not filed with the District Court a written stipulation, signed by the parties, providing for the trial of the cause by the court without the intervention of a jury. The plaintiff in error has failed to answer the petition under the rule issued. The record in this court recites that the trial without a jury was duly waived, and, no question being raised as to the sufficiency of the waiver, the court erroneously assumed, without further concern, a legal waiver.

The Seventh Amendment to the Constitution of the United States guarantees a jury trial "in suits at common law where the value in controversy shall exceed twenty dollars. * * *" Act March 3, 1865, § 4 (13 Stat. 501; section 649, R. S.; section 1587, C. S.), provides that the right of trial by jury preserved by the Seventh Amendment may be waived "* * * whenever the parties or their attorneys of record file a stipulation in writing with the clerk of the court, waiving a jury. * * *"

Section 700, R. S. (section 1668, C. S.), provides that the determination of an issue of fact in a civil case, determined by the court without a jury as provided in section 649, and the rulings during the progress of the trial, if excepted to at the time and presented by a bill of exceptions, may be reviewed upon a writ of error or upon appeal.

The Supreme Court in County of Madison v. Warren, 106 U. S. 622, 2 S. Ct. 86, 27 L. Ed. 311, considered a case "on all fours" with this case and said: "The rule is well settled that, if a written stipulation waiving a jury is not in some way shown affirmatively in the record, none of the questions decided at the trial can be re-examined here on writ of error. * * *"

This case has been followed without exception, and this court in Bouldin et al. v. Alto Mines, 299 F. 301, through Judge Rudkin, said: "No other waiver will suffice, and in the absence of such a stipulation we can only look to the process, pleadings, and judgment." And again in United States v. McGovern, 299 F. 302, this court, through Judge Hunt, said: "* * * Because it does not appear that the parties or their counsel complied with section 649 of the Revised Statutes, * * * by filing a stipulation in writing waiving a jury, * * * we are confined to an...