Hendrie v. Turpen

• Decision Date: 27 May 1931
• Docket Number: No. 415.,415.
• Citation: 50 F.2d 1049
• Parties: HENDRIE v. TURPEN.
• Court: U.S. Court of Appeals — Tenth Circuit

50 F.2d 1049 (1931)

HENDRIE v. TURPEN.

No. 415.

Circuit Court of Appeals, Tenth Circuit.

May 27, 1931.

W. W. Grant, Jr., Erl H. Ellis, Morrison Shafroth, and Henry W. Toll, all of Denver, Colo., for appellant.

M. A. Kline, of Cheyenne, Wyo., and Oscar O. Natwick, of Wheatland, Wyo., for appellee.

Before LEWIS and COTTERAL, Circuit Judges, and POLLOCK, District Judge.

POLLOCK, District Judge.

This action brought by appellee (hereinafter called plaintiff) against appellant (hereinafter called defendant) is in two counts; the first to recover damages for breach of a contract made between the parties for the construction of a hotel building in Lusk, Wyoming; the second count is for materials and labor furnished and performed by plaintiff for defendant before the contract is alleged to have been breached by defendant ordering plaintiff to cease work under the contract. The contract price agreed to be paid was $51,237.52. Defendant confessed judgment on the second count, hence it needs no further consideration.

A jury to try the issues on the first count was waived and the matter was tried and determined by the court, resulting in a judgment in favor of plaintiff for $11,459.57 on the two counts. Defendant appeals.

After the trial of the case the court took the matter under advisement, made a general finding of the facts in favor of plaintiff on which the judgment was entered.

While the trial court had the case under advisement, and on August 5, 1930, defendant moved the court to make certain findings of fact and conclusions of law, which motion was denied and only general findings were made.

The errors as shown assigned in the record are fifteen in number. As appellant's brief fails to specify the assigned errors on which he relies, the errors assigned may be treated as a whole.

When in an action at law in a national court a jury is waived and the case is tried to the court, while the court may from the evidence make special findings of fact it is not required to do so. Mercantile Ins. Co. v. Folsom, 18 Wall. 237, 21 L. Ed. 827; Ozark Pipe Line Corporation v. Decker (C. C. A.) 32 F.(2d) 66; Cross Company v. Texhoma O. & R. Co. (C. C. A.) 32 F.(2d) 442; Denver Live Stock Com. Co. v. Lee (C. C. A.) 18 F.(2d) 11, 16; Ewert v. Thompson (C. C. A.) 281 F. 449; American Surety Co. v. Savanah Creosoting Co. (C. C. A.) 35 F.(2d) 272; Bank of Waterproof v. Fidelity & Deposit Co. (C. C. A.) 299 F. 478.

"Issues of fact in civil cases in any district 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. The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury." 28 USCA § 773.

In Denver Live Stock Com. Co. v. Lee, supra, Circuit Court of Appeals, Eighth Circuit, said: "The court did not err in denying the request of the defendants for special findings. `The making of special findings of fact in an action at law tried by the court on a waiver of a jury is discretionary with the trial court, and its action in making such findings, in refusing to make requested findings, or in refusing to amend findings made, is not subject to exception, or to a subsequent review in a federal appellate court.'"

In Ozark Pipe Line Corporation v. Decker, supra, it is said: "A jury was waived by a stipulation in writing. A judgment was rendered in favor of the plaintiff. The defendant assigns as error that the court refused findings of fact which it had requested, but, where a trial by jury is waived by a written stipulation, the refusal of findings of fact tendered, even though they are correct deductions from the pleadings and evidence, is not error, because the making of special findings of fact is entirely discretionary with the court."

It therefore follows the assignments of error based upon the refusal of the court to make special findings, or in refusing to find, are not reviewable here, and may be denied.

When a case is tried by the court...