Ladd & Tilton Bank v. Lewis A. Hicks Co.

• Decision Date: 19 October 1914
• Docket Number: 2324.
• Citation: 218 F. 310
• Parties: LADD & TILTON BANK v. LEWIS A. HICKS CO.
• Court: U.S. Court of Appeals — Ninth Circuit

218 F. 310

LADD & TILTON BANK v. LEWIS A. HICKS CO.

No. 2324.

United States Court of Appeals, Ninth Circuit.

October 19, 1914

Wood Montague & Hunt, of Portland, Or., for plaintiff in error.

Chamberlain Thomas & Kraemer and Lester W. Humphreys, all of Portland Or., for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and VAN FLEET, District judge.

VAN FLEET, District Judge.

The writ of error in this case brings up for review a judgment in an action at law tried to the court without a jury; the judgment being based upon a general finding upon the evidence in favor of the defendant in the court below, the defendant in error here. A jury was dispensed with by consent of the parties expressed orally in open court, but no stipulation in writing evidencing the waiver was had or filed; and the assignments of error are all based upon rulings had at the trial.

In this state of the record the defendant in error makes the point that the errors assigned may not competently be inquired into by this court; and we are of opinion that this objection must prevail, at least as to all but a single assignment to be noticed later. The objection is based upon the limitations which circumscribe these courts in trials of issues of fact in actions at law; the statute requiring that they be tried by a jury (section 648, R.S. (U.S. Comp. St. 1913, Sec 1584)), unless the jury be waived by a stipulation in writing (section 649 (section 1587)), when the facts may be tried by the court and its rulings reviewed as provided in section 700 (section 1668). These provisions have been construed, so far as the right to review is concerned, as jurisdictional; and in the absence of a compliance therewith, except the facts be admitted by the parties in a case stated, no question is open for review on error other than 'those arising upon the process, pleadings, or judgment. ' Erkel v. United States, 169 F. 623, 624, 95 C.C.A. 151, 152. In that case the rule and its reason are thus stated by Judge Gilbert:

'It is well settled that no question of law can be reviewed on error, except those arising upon the process, pleadings, or judgment, 'unless the facts are found by a jury by a general or special verdict, or are admitted by the parties upon a case stated.' Campbell v. Boyreau, 21 How. 223, 16 L.Ed. 96. In that case it was held that the finding of issues of fact by the court upon the evidence is altogether unknown to a common-law court, and cannot be recognized as a judicial act. The court said: 'And this court, therefore, cannot regard the facts so found as judicially determined in the court below, nor examine the questions of law, as if those facts had been conclusively determined by a jury or settled by the admission of the parties."

As all the leading cases in support of these principles are there cited, further consideration of the question is unnecessary, since it is in no respect left in doubt.

While those sections of the statute applied originally only to trials in the late Circuit Courts, they were, on the abolishment of those courts, given application to the present District Courts. Judicial Code, Sec. 291 (Act March 3, 1911, c. 231, 36 Stat. 1167 (U.S. Comp. St. 1913, Sec. 1268)). Nor is the objection, as urged, in any proper sense, technical, or one which the defendant in error is estopped, by its consent in the court below, from raising. It is one which goes to the question of the court's power in the premises, and which it would be bound to regard independently of objection by a party. Bond v. Dustin, 112 U.S. 604, 605, 5 Sup.Ct. 296, 28 L.Ed. 835.

It is urged that, if compliance with these provisions is to be regarded as jurisdictional for the purposes of review, they are equally so as to the power of the trial court to competently render a valid judgment, and that as a result there has not been a trial of the action such as contemplated by law, and no judgment which can bind any one, and that the cause should therefore be remanded for disposition in accordance with the forms of law. But this contention is quite at variance with the settled law on the subject. The omission to legally waive a jury does not deprive the trial court; it having jurisdiction of the action and the parties, of power to render a valid judgment. It affects only the extent to which such judgment may be reviewed. The judgment is valid unless set aside, and may be reviewed in certain respects, but the rulings as to the facts underlying it cannot be inquired into. This distinction is expressly recognized in Campbell v. Boyreau, 21 How. 223, 16 L.Ed. 96, where it is said that:

'As the Circuit Court had jurisdiction of the subject-matter and the parties, and there is no question of law or fact open to our re-examination, its judgment must be presumed to be right, and on that ground only affirmed.'

And again in Bond v. Dustin, supra, the court say, in considering these sections:

'Before the passage of this statute, it had been settled by repeated decisions that in any action at law in which the parties waived a trial by jury and submitted the facts to the determination of the Circuit Court upon the evidence, its judgment was valid; but that this court had no authority to revise its opinion upon the admission or rejection of testimony, or upon any other question of law growing out of the evidence, and therefore, when no other error appeared on the record, must affirm the judgment.'

And it was held that the same rule as to the validity of the judgment obtains under the statute; the judgment being affirmed.

We are thus left at liberty to consider only questions as to the sufficiency of the pleadings to sustain the judgment. In this view there is one ruling which we are called upon to notice. At the close of the evidence, plaintiff (plaintiff in error here) moved the court 'for a judgment on the pleadings and for a verdict and judgment upon the pleadings and testimony,' on certain grounds stated. This motion was denied, an exception taken, and the ruling assigned as error. The contention is made for the first time in the reply brief filed since the argument, that this ruling involves the sufficiency of the pleadings to sustain the judgment, and as such is open to our review. In the first place, not only the form of the motion but the reasons upon which it was based indicate that it was more in the nature of a motion for judgment for want of sufficient evidence to sustain a special defense set up in the answer than one challenging the sufficiency of the pleading; and it is largely so treated in the opening brief of plaintiff in error, the sufficiency of the evidence being fully discussed. But in the next place, assuming that the assignment is such as to raise a question of the sufficiency of the special defense to sustain the judgment, it is without material effect. The record discloses that, in addition to the special defense pleaded, the answer contained denials of...