Kentucky Life & Acc. Ins. Co. v. Hamilton
Decision Date | 08 May 1894 |
Docket Number | 134. |
Citation | 63 F. 93 |
Parties | KENTUCKY LIFE & ACC. INS. CO. v. HAMILTON. [1] |
Court | U.S. Court of Appeals — Sixth Circuit |
Marc Mundy, for plaintiff in error.
Azro Dyer, for defendant in error.
Before TAFT and LURTON, Circuit Judges, and RICKS, District Judge.
This was an action on a policy of insurance upon the life of Mrs Sarah Ritter, the defendant in error being the beneficiary to whom the sum assured was to be paid on the death of Mrs Ritter. A jury was waived by written stipulation entered of record, and the issue submitted to the court. The court found for the plaintiff, and rendered judgment for the full sum assessed, with interest. The errors assigned by the appellant are these:
Section 649 of the Revised Statutes provides that a jury may be waived, and issues of fact tried and determined by the court, upon a stipulation in writing. The finding of the court upon the facts may be general or special, and, by the statute, is given the same effect as the verdict of a jury. By section 700 the method of reviewing a judgment so rendered is provided. That section is in these words:
'When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to section six hundred and forty-nine, the rulings of the court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed by the supreme court upon a writ of error or upon an appeal; and when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment.'
There was no such special finding of facts by the court as required in order to enable this court to determine the sufficiency of the facts to support the judgment. The judgment entry was as follows:
That entry recites that, 'the court delivered a written opinion,' 'and made a finding of all the issued in favor of the plaintiff. ' This is nothing more than a general finding in favor of the plaintiff. The contention of the appellant is that the effect of the recital is to make the opinion a part of the record, and a special finding of facts, within the statute. We do not think the opinion thereby becomes a part of the record. It is a mere recital of the fact that an opinion had been read. The opinion did not become thereby a part of the judgment entry, and did not operate as a special finding of facts. The opinion is included in the transcript sent to us, but there is no minute entry making it a part of the record. It was properly included in the transcript under the 14th rule of this court, which requires the clerk of the circuit court 'to transmit with the record a copy of the opinion or opinions filed in the case. ' This opinion does not purport to be a special finding of facts. Some parts of the evidence are referred to and commented on for the purpose of supporting the judgment. In so far as it deals with the facts, it is a mere statement of the evidence, and not the conclusion of the court as to the facts from the evidence. In Insurance Co. v. Tweed a like question arose. Mr. Justice Miller, on this subject, said:
7 Wall. 51.
In that case, counsel stipulated in the supreme court that certain parts of the opinion should be accepted as showing the material facts of the case. Upon this agreement the court permitted the opinion to stand for a special finding of facts. Whether that practice would be again followed is more than questionable. Here there is no such agreement. Upon the contrary, counsel for appellee has strenuously insisted in brief and argument that no case is here presented for review by this court, and that the opinion is not a special finding of the ultimate facts. We have therefore, 'no aid outside of the record,' and we cannot treat the opinion as a finding of facts. Insurance Co. v. Tweed, supra; Dickinson v. Bank, 16 Wall. 250; Reed v. Stapp, 3 C.C.A. 244, 52 F. 641. In the latter case the court said:
It seems to us very clear that the opinion found in this transcript should not be regarded as a special finding of facts. The facts submitted to the circuit court have been made a part of the record by bill of exceptions. The supreme court of the United States have frequently ruled that a bill of exceptions embodying the evidence is not the special finding which will enable an appellate court to review the evidence, and determine the sufficiency of the facts to support the judgment. The statute contemplates two distinct kinds of findings, to wit, general and special. 'This,' as observed by Mr. Justice Miller in Norris v. Jackson, 9 Wall. 127, This special finding, said 'the court in that case 'is not a mere report of the evidence, but a statement of the ultimate facts on which the law of the case must determine the rights of the parties; a finding of the propositions of fact which the evidence establishes, and not the evidence on which those ultimate facts are supposed to rest. ' 'Whether the finding be general or special,' (the statute) ' ...
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