Morris v. Canda

• Decision Date: 04 May 1897
• Citation: 80 F. 739
• Parties: MORRIS et al. v. CANDA et al.
• Court: U.S. Court of Appeals — Fifth Circuit

80 F. 739

MORRIS et al. v. CANDA et al.

United States Court of Appeals, Fifth Circuit.

May 4, 1897

W. B Merchant, John D. Rouse, Wm. Grant, E. Williams, Guy M Hornor, and Jas. Legendre, for plaintiffs in error.

Thos J. Beall, for defendants in error.

Before PARDEE and MCCORMICK, Circuit Judges, and NEWMAN, District Judge.

McCORMICK Circuit Judge.

This is an action of trespass to try title to lands described in the petition. The defendants who answered pleaded the statutory plea,-- not guilty. By a stipulation in writing the parties waived a jury, and consented that the matters of law and of fact should be tried by the court. No exceptions were reserved to any action of the judge on exceptions to the pleadings, nor on objection to the admissibility of evidence. There was a general finding and judgment for the defendants. The plaintiffs prosecute this writ of error, and in their assignment say that in the record and proceedings in the circuit court there is manifest error, in this, to wit First, because the judgment rendered by said court on the 8th day of October, 1894, is contrary to the law and the evidence (stating the evidence relied on); second, because the court committed a material error in refusing to grant the plaintiffs' motion for a new trial. The second error we do not consider, because such action of the court is not reviewable. The first error we cannot consider, because the judge made no special findings of fact, and, as far as this record discloses, committed no error in the admission or rejection of testimony, and the pleadings are sufficient to support the judgment. City of Key West v. Baer, 30 U.S.App. 140, 13 C.C.A. 572, and 66 F. 440. The plaintiffs in error insist that the bill of exceptions which is brought up in this record is substantially a statement of the special findings of fact made by the trial judge. We do not so construe it. It purports to be a bill of exceptions. Its opening words are:

'Be it remembered that upon the trial of the above-entitled cause, the following facts being established by the testimony, to wit.'

And its concluding words are:

'And thereupon the court rendered judgment against the plaintiffs, and thereafter the plaintiffs moved the court, on the grounds stated in their motion, for a new trial, which motion the court overruled, as appears by record herein, to which judgment the plaintiffs in open court excepted, and now tender this

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