King v. Smith

• Decision Date: 19 August 1901
• Docket Number: 700.
• Citation: 110 F. 95
• Parties: KING v. SMITH et al.
• Court: U.S. Court of Appeals — Ninth Circuit

110 F. 95

KING v. SMITH et al.

No. 700.

United States Court of Appeals, Ninth Circuit.

August 19, 1901

Wm. M Cannon and Whitworth & Shurtleff, for plaintiff in error.

Galpin & Bolton and L. S. B. Sawyer, for defendants in error.

Before GILBERT, Circuit Judge, and HAWLEY and DE HAVEN, District judges.

DE HAVEN, District Judge.

This was an action at law, in the form of replevin, to recover 190 bonds of the California & Nevada Railroad, of the alleged value of $50,000. A jury trial was expressly waived by the parties, and the cause was tried by the circuit court without a jury, and upon such trial the court found:

'(2) The plaintiff on the 26th day of September, 1900, was, ever since has been, and still is the owner and entitled to possession of the property described in the complaint; and said property was at all of said dates and times of the value of forty-seven thousand five hundred dollars ($47,500). The defendants at all said dates and times unlawfully withheld and now retain the possession of said property described in plaintiff's complaint from the possession of the plaintiff.'

As a conclusion of law from this and other findings not necessary to refer to, the court found that the plaintiff was entitled to recover from defendants the possession of the bonds described in the complaint, and judgment was thereupon entered in his favor and against the defendants in accordance with such conclusion of law. The case is brought here on writ of error by the defendant C. K. King, as administrator of the estate of J. W. Smith, deceased. There are 15 formal assignments of error, all directed against the findings of fact, and the judgment based upon such findings. With the exception of the first, relating to the citizenship of the parties, and which is not insisted upon by the plaintiff in error, the assignments of error really present but two questions, stated in different form; one challenging the legal sufficiency of the evidence to justify the finding above set out, and the other the sufficiency of the findings to sustain the judgment. There is in the record a bill of exceptions containing the evidence given upon the trial, and which also shows that an exception to the above finding was taken by the plaintiff in error, upon the ground of the insufficiency of the evidence to support it. One of the assignments of error, and the only one which need be noticed is as follows:

'That the court erred in finding that the evidence was sufficient to show that plaintiff was at any of the times mentioned in the complaint the owner or entitled to the possession of the property described in the complaint, or any part thereof.'

I. It is urged by the defendant in error that this assignment of error presents a question of fact, which this court has no power to review, and, as we understand the argument, that the evidence contained in the bill of exceptions cannot be examined for the purpose of determining whether the finding excepted to is sustained by any legal evidence. We do not understand that the rule is as broad as this contention. The finding that the plaintiff in the action is the owner and entitled to the possession of the property described in the complaint is clearly a general finding of the ultimate facts of ownership and right of possession, and is conclusive here, unless there was an entire want of evidence upon which to base it. The seventh amendment to the constitution declares that:

'In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.'

Section 649, Rev. St., provides:

'Issues of fact in civil cases in any circuit 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.'

The findings of the court, when a jury has been waived, having, under the statute, the same effect as the verdict of a jury, it follows that such findings cannot be otherwise re-examined 'than according to the rules of the common law'; that is to say, 'either by the granting of a new trial by the court where the issue was tried, or to which the record was returnable, or by the award of a venire facias de novo by an appellate court, for some error of law which intervened in the proceedings.' Parsons v. Bedford, 3 Pet. 433, 7 L.Ed. 732; Miller v. Insurance Co., 12 Wall. 285, 20 L.Ed. 398. Hathaway v. Bank, 134 U.S. 494, 10 Sup.Ct. 608, 33 L.Ed. 1004, was an action at law tried by a United States circuit court without a jury, and brought to the supreme court on writ of error. Some of the assignments of error assailed certain findings of the court as not sustained by the evidence, and in passing upon the question so presented the supreme court said:

'The first three assignments of error allege errors merely in the findings of fact by the court. These errors are not subject to revision by this court if there was any evidence upon which such findings could be made.'

In Stanley v. Board, 121 U.S. 535, 7 Sup.Ct. 1234, 30 L.Ed. 1000,-- a case in which the same question was involved,-- the rule, without its qualification, was thus stated by the supreme court:

'Where a case is tried by the court without a jury its findings upon questions of fact are conclusive here, it matters not how convincing the argument that upon the evidence the findings should have been different.'

See, also, Ryan v. Carter, 93 U.S. 78, 23 L.Ed. 807; Hepburn v. Dubois, 12 Pet. 345, 9 L.Ed. 1111; Zeller's Lessee v. Eckert, 4 How. 289, 11 L.Ed. 979.

The law as declared in the foregoing cases is the rule by which this court must be governed in the matter now before it. The judgment of a circuit court of the United States in an action at law can only be reviewed in the circuit court of appeals by writ of error. Section 6 of the act of March 3, 1891 establishing circuit courts of appeals (26 Stat. 826). This writ brings up for review only errors of law apparent on the face of the record; and for this reason, and also because of the seventh amendment to the constitution, and section 649 of the Revised Statutes, the circuit court of appeals, in the decision of a case on writ of error, is necessarily confined to the consideration of questions of law arising upon the record. Hill v. Woodberry, 1 C.C.A. 206, 49 F. 138; Graham v. Earl,...