Merrill v. Floyd
| Decision Date | 10 November 1892 |
| Docket Number | 23. |
| Citation | 53 F. 172 |
| Parties | MERRILL v. FLOYD. |
| Court | U.S. Court of Appeals — First Circuit |
William A. Macleod and Robert D. Trask, for plaintiff in error.
Benjamin F. Butler and T. Henry Pearse, for defendant in error.
Before COLT and PUTNAM, Circuit Judges, and Circuit Judges, and NELSON, District Judge.
No question can be raised in this court on the pleadings in the case at bar, because there is no assignment of errors relating thereto; and we do not understand that plaintiff in error calls our attention to any alleged insufficiencies in the declaration, or intends to do so. It has been decided too often to need reiteration that an appellate court cannot, on error, according to the course of the common law, re-examine a motion for a new trial, based on the weight or insufficiency of evidence, or any exceptions to the action of the court below denying such motion. Therefore we have no jurisdiction over the first and second exceptions, not over the first, second, and third assignments of errors, and no occasion to open the record so far as it recites the proofs or the proceedings at the trial in the circuit court. This of course, does not include questions as to the effect of findings of fact. But when a case is tried in the circuit court otherwise than according to the strict course of common law, we have no jurisdiction as to exceptions taken at the trial, or as to the effect of the facts found, except under Rev. St. Secs. 649, 700. Here we do not find the waiver these sections require, which is an absolute one, while the agreement filed was merely 'tentative,' or in effect conditional. The fact that it was apparently afterwards acted on, and thus by the conduct of the parties apparently relieved, so far as concerns them, of its 'tentative' feature, does not aid the plaintiff in error. The statute demands precision, and intends that the record shall leave no doubt as to the exact nature of the trial. Therefore it requires that the agreement of waiver, and the whole of it shall be in writing, and does not permit it to be supplemented in any part by parol or by acts in pais. It is intended for the protection and guidance of the court, as well as of the parties, and it cannot be waived by the latter. The provisions of the statute are simple, and can easily be complied with in such manner as to leave behind no uncertainty, and we must enforce them according to their...
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City of Cleveland v. Walsh Const. Co.
... ... 1019, 30 L.Ed. 193, where findings were deemed ... part of the record, though not pursuant to section 700. It is ... opposed by Merrill v. Floyd (C.C.A. 1) 53 F. 172, 3 C.C.A ... 494; Branch v. Texas Co. (C.C.A. 5) 53 F. 849, 4 C.C.A. 52; ... Rush v. Newman (C.C.A. 8) 58 F. 158, 7 ... ...
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Talent v. United States
...270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624; Campbell v. United States, 224 U. S. 99, 32 S. Ct. 398, 56 L. Ed. 684; Merrill v. Floyd (C. C. A.) 53 F. 172 (1st Cir.); Law v. United States, 266 U. S. 494, 496, 45 S. Ct. 175, 69 L. Ed. 401; Smith v. Weeks (C. C. A.) 53 F. 758, 761 (1st Cir.). ......
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Duncan v. Atchison, T. & S.F.R. Co.
... ... v. Hughes, ... 124 U.S. 157, 160, 8 Sup.Ct. 377; Spalding v ... Manasse, 131 U.S. 65, 9 Sup.Ct. 649; Merrill v ... Floyd, 3 C.C.A. 494, 53 F. 172; Branch v. Lumber ... Manuf'g Co., 4 C.C.A. 52, 53 F. 849; Bowden v ... Burnham, 8 C.C.A. 248, 59 F. 753; ... ...
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Smith v. Weeks, 36.
...the federal courts disapprove; and, to conclude, as this record comes into this court, the case is well within the rule settled by us in Merrill v. Floyd, 53 Fed.R:p. The validity of the exceptions, and their effect, depend on the status at the time when taken; therefore the agreement in th......