National Bank of Commerce v. First Nat. Bank, 315.

• Decision Date: 21 May 1894
• Docket Number: 315.
• Parties: NATIONAL BANK OF COMMERCE OF KANSAS CITY, MO., v. FIRST NAT. BANK OF KANSAS CITY, KAN., et al.
• Court: U.S. Court of Appeals — Eighth Circuit

61 F. 809

NATIONAL BANK OF COMMERCE OF KANSAS CITY, MO., v. FIRST NAT. BANK OF KANSAS CITY, KAN., et al.

No. 315.

United States Court of Appeals, Eighth Circuit.

May 21, 1894

Elijah Robinson, for plaintiff in error.

Samuel R. Peters (Joseph W. Ady and John C. Nicholson, on the brief), for defendants in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

SANBORN Circuit Judge.

The National Bank of Commerce of Kansas City, Mo., the plaintiff in error, brought an action in the court below against the First National Bank of Kansas City, Kan., and W. T. Atkinson its receiver, the defendants in error, upon four causes of action. The court below denied a recovery on the first and second causes set forth in the petition (55 F. 465), and this writ of error was sued out to reverse this decision.

The first cause of action was based on a promissory note for $38,959, dated October 22, 1890, made by the English &amp American Mortgage Company, Limited, a corporation, indorsed by the First National Bank of Kansas City, Kan., by D. R Emmons, its president, and payable to the order of the plaintiff in error. The second cause of action rested upon a promissory note for $7,500, dated October 20 1890, made by the same mortgage company, indorsed in the same way, and payable to the order of the plaintiff in error. The defense to these notes was that neither the president nor any other officer of the defendant bank ever had any authority to make these or like indorsements; that that bank never received any consideration or benefit from them; that they were mere accommodation indorsements; that they were not made in the ordinary course of the business of the bank, and were never ratified by it; and that the plaintiff bank had full knowledge of all these facts from the inception of the transactions out of which these notes arose. A jury was waived, and the case was tried by the court, which found all the issues relating to these two causes of action for the defendants.

No request was made for any ruling upon any proposition of law during the trial, nor was the court requested to hold that the evidence was insufficient to sustain a finding or judgment for the defendant upon either of the causes of action in question. The court below delivered an exhaustive opinion, in which the facts and the law of the case were discussed; and to every finding and ruling contained in this opinion the plaintiff excepted, and it also excepted to the general finding for the defendants contained in the judgment. But these exceptions avail nothing. Where the finding is general, there are only two methods by which questions of law can be so presented to the trial court that this court can review them, viz. by seasonable objections and exceptions to the rulings of the court upon the admission or rejection of evidence, and by requesting the court, before the trial is ended, to make declarations of law, and by excepting to its refusal to do so, and to its declarations of law, if any, that do not accord with the views of counsel, in exactly the same way that instructions to a jury would be requested, and the rulings of the court giving and refusing instructions would be excepted to if the trial was before a jury. The finding of the court, whether general or special, performs the office of the verdict of the jury. When it is made and filed, the trial is ended, and exceptions to it are as futile as exceptions to a verdict. When the trial court makes a special finding of the facts, the only additional question we are permitted to consider is the sufficiency of the facts found to sustain the judgment rendered. The sufficiency of the evidence to sustain the findings is never presented unless a request is made, before the trial is ended, that the court will hold the evidence insufficient. These rules have been repeatedly announced by this court. Trust Co. v. Wood, 8 C.C.A. 658, 60 F. 346; Walker v. Miller, 8 C.C.A. 331, 59 F. 869; Bowden v. Burnham, 8 C.C.A. 248, 59 F. 752; Clement v. Insurance Co., 7 Blatchf. 51, 53, 54, 58, Fed.Cas.No. 2,882; Norris v. Jackson, 9 Wall. 125, 127; Insurance Co. v. Folsom, 18 Wall. 237, 249; Cooper v. Omohundro, 19 Wall. 65, 69; Martinton v. Fairbanks, 112 U.S. 670, 5 Sup.Ct. 321; Lehnen v. Dickson, 148 U.S. 71, 13 Sup.Ct. 481.

If the facts recited in the opinion of the court could be treated as a special finding in this case (and we are clearly of the opinion that they cannot), they are ample to support the judgment. In the opinion and in the judgment the court finds all the issues arising on the two causes of action in controversy for the defendants. The law is unquestioned that an accommodation indorsement of a national bank, from which it derives no benefit, made by an officer without authority, and out of the ordinary course of the business of the bank, is void in the hands of the original payee of the paper, when he takes it with full knowledge of the character of the indorsement. 2 Morse, Banks, Sec. 728 et seq.; 1 Rand.Com.Paper, Sec. 334, and authorities cited. It follows that we can consider no rulings of the trial court in this case except those made upon the admission or rejection of evidence.

But, upon an examination of the record relative to these rulings, we discover that, while exceptions were taken to some of them, none of these rulings were assigned as error in accordance with the rules of this court. Our eleventh rule provides that:

'The plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed. When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected. * * * Such assignment of errors shall form part of the transcript of the record and be printed with it. When this is not done, counsel will not be heard except at the request of the court; and errors not assigned according to this rule will be disregarded; but the court, at its option, may notice a plain error not assigned.' 47 F. vi.

The only pretense of the assignment of any errors in the rulings of the court upon the admission or rejection of evidence is in these words:

'First, the said circuit court erred in excluding legal and proper evidence offered by said plaintiff; second, the said circuit court erred in admitting illegal and improper evidence offered by defendant.'

This is a patent and total disregard of the rule. No error is set out 'separately and particularly.' The substance of the evidence, the admission or rejection of which is alleged...