O'Hara v. Mobile & O.R. Co.

• Decision Date: 26 October 1896
• Docket Number: 774.
• Citation: 76 F. 718
• Parties: O'HARA v. MOBILE & O.R. Co.
• Court: U.S. Court of Appeals — Eighth Circuit

76 F. 718

O'HARA v. MOBILE & O.R. Co.

No. 774.

United States Court of Appeals, Eighth Circuit.

October 26, 1896

Given Campbell (O'Neill Ryan with him on the brief), for plaintiff in error.

R. P Williams, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge, after stating the case as above, .

The case was tried by the court, which made a general finding of facts upon which judgment was rendered in favor of the defendant. In Dirst v. Morris, 14 Wall. 484, 490 the supreme court, speaking by Mr. Justice Bradley, said:

'The court was exercising the functions of both court and jury and whether, as matter of fact, it regarded the proof sufficient to show that Breese had been served with process in the foreclosure suit, whether, as matter of law, it regarded that fact as not material, or what other view of the case it may have taken, does not appear, and therefore no error can be asserted in the decision. This court, sitting as a court of error, cannot pass, as it does in equity appeals, upon the weight or sufficiency of the evidence; and there was no special finding of the facts. Had there been a jury, the defendant might have called upon the court for instructions, and thus raised the questions of law which he deemed material. Or, had the law, which authorizes the waiver of a jury, allowed the parties to require a special finding of the facts, then the legal questions could have been raised and presented here upon such findings as upon a special verdict. But, as the law stands, if a jury is waived, and the court chooses to find generally for one side or the other, the losing party has no redress on error, except for the wrongful admission or rejection of evidence.'

The doctrine of this case that, where a jury is waived, and the court finds generally for one side or the other, the losing party has no redress on error except for the wrongful admission or rejection of evidence, has been repeatedly affirmed by the supreme court and by this court and by other circuit courts of appeals. Insurance Co. v. Folsom, 18 Wall. 237; Cooper v. Omohundro, 19 Wall. 65; British Queen Min. Co. v. Baker Silver Min. Co., 139 U.S. 222, 11 Sup.Ct. 523; Martinton v. Fairbanks, 112 U.S. 670, 5 Sup.Ct. 321; Lehnen v. Dickson, 148 U.S. 71, 13 Sup.Ct. 481; Stanley v. Supervisors, 121 U.S. 535, 7 Sup.Ct. 1234; Walker v. Miller, 19 U.S.App. 403, 8 C.C.A. 331, and 59 F. 869; Searcy Co. v. Thompson, 27 U.S.App. 715, 13 C.C.A. 349, and 66 F. 92; Insurance Co. v. Hamilton, 22 U.S.App. 386, 11 C.C.A. 42, and 63 F. 93; Insurance Co. of North America v. International Trust Co., 17 C.C.A. 616, 71 F. 88; Accident Ass'n v. Robinson, 20 C.C.A. 262, 74 F. 10; City of Key West v. Baer, 13 C.C.A. 572, 66 F. 440; Rhodes v. Bank, 13 C.C.A. 612, 66 F. 512; Distilling & Cattle Feeding Co. v. Gottschalk Co., 13 C.C.A. 618, 66 F. 609; Blanchard v. Bank, 75 F. 249. In Lehnen v. Dickson, supra, the supreme court said: 'The duty of finding the facts is placed upon the trial court. We have no authority to examine the testimony in any case and from it make a finding of the ultimate facts.'

We will examine the assignments of error relating to the admission of evidence over the objection of the plaintiff. The defendant offered in evidence a transcript of the record of the proceedings of the United States circuit court for the Southern district of Illinois in the case of the Atlantic Trust Company and the Railroad Equipment Company against Henry O'Hara and the Mobile & Ohio Railroad Company. The plaintiff in this suit, O'Hara, was a party to that suit and appeared therein, and answered. The record contained matters material to the issues in this case. Its introduction in evidence was objected to on the ground that it did not contain all the exhibits to the original bill. A sufficient answer to this objection is found in the fact that the original exhibits were afterwards duly proved, and introduced in evidence. A party, however, desiring to use as evidence some part of the record of a judicial proceeding may do so without producing a transcript of the whole record. It is enough for...