Noone v. Sinner

• Decision Date: 06 March 1928
• Docket Number: No. 7438.,7438.
• Citation: 24 F.2d 960
• Parties: NOONE v. SINNER.
• Court: U.S. Court of Appeals — Eighth Circuit

24 F.2d 960 (1928)

NOONE v. SINNER.

No. 7438.

Circuit Court of Appeals, Eighth Circuit.

March 6, 1928.

C. W. Burch, B. I. Litowich, and LaRue Royce, all of Salina, Kan., for plaintiff in error.

R. M. Anderson, of Lincoln, Neb., and C. L. Kagey, of Beloit, Kan., for defendant in error.

Before KENYON and BOOTH, Circuit Judges, and MUNGER, District Judge.

MUNGER, District Judge.

The plaintiff in error brought suit against the defendant in error and her husband to recover upon three promissory notes signed by them. The answers alleged failure of consideration and that they were executed as accommodation notes to the plaintiff in error. A trial by jury was waived, and after hearing the evidence the trial judge found in favor of the defendant in error, but entered judgment against her husband. The plaintiff in error has prosecuted a writ of error from that judgment.

If a jury trial is waived in an action at law, in which a jury trial is demandable as a matter of right, and the waiver is not made by a written stipulation, the scope of review, under a writ of error, is limited to questions which arise on the process, pleadings or judgment, unless the facts are admitted under a case stated. This has been the rule since the first Judiciary Act of 1789, except in cases which arose under special acts of Congress relating to Louisiana and to California and Oregon. Campbell v. Boyreau, 21 How. 223, 226, 16 L. Ed. 96; Guild v. Frontin, 18 How. 135, 15 L. Ed. 290; Flanders v. Tweed, 9 Wall. 425, 430, 19 L. Ed. 678; Kearney v. Case, 12 Wall. 275, 281, 282, 283, 20 L. Ed. 395; Bond v. Dustin, 112 U. S. 604, 606, 607, 5 S. Ct. 296, 28 L. Ed. 835; Road District v. St. Louis S. W. R. Co., 257 U. S. 547, 562, 42 S. Ct. 250, 66 L. Ed. 364; Duignan v. United States, 274 U. S. 195, 198, 47 S. Ct. 566, 71 L. Ed. 996; County of Madison v. Warren, 106 U. S. 622, 623, 2 S. Ct. 86, 27 L. Ed. 311; Shipman v. Straitsville Mining Co., 158 U. S. 356, 361, 15 S. Ct. 886, 39 L. Ed. 1015; St. Louis S. W. R. Co. v. Com'rs of Road Imp. Dist. No. 2 (C. C. A.) 265 F. 524, 528; Ford v. United States (C. C. A.) 260 F. 657, 658; Ladd & Tilton Bank v. Lewis A. Hicks Co. (C. C. A.) 218 F. 310, 311; Erkel v. United States (C. C. A.) 169 F. 623, 624; Bouldin v. Alto Mines Co. (C. C. A.) 299 F. 301, 302; United States v. McGovern (C. C. A.) 299 F. 302, 303; Illinois Surety Co. v. United States (C. C. A.) 229 F. 527, 529; Rush v. Newman (C. C. A.) 58 F. 158, 160; Duncan v. Atchison, T. & S. F. R. Co. (C. C. A.) 72 F. 808, 810; City of Defiance v. Schmidt (C. C. A.) 123 F. 1, 3; Bowers v. Henry Steers, Inc. (C. C. A.) 241 F. 377, 378; Ford v. Grimmett (C. C. A.) 278 F. 140, 142; Hadfield-Penfield Steel Co. v. Eastern Production Co. (C. C. A.) 281 F. 382, 383; United States v. National City Bank of New York (C. C. A.) 281 F. 754, 758; National City Bank v. Kimball Commercial & Savings Bank (C. C. A.) 2 F.(2d) 461, 462; Emerzian v. S. J. Kornblum & William Kornblum (C. C. A.) 3 F.(2d) 995, 996; Twist v. Prairie Oil & Gas Co. (C. C. A.) 6 F.(2d) 347, 350; James-Dickinson Farm Mortgage Co. v. Seimer (C. C. A.) 12 F.(2d) 772; Municipal Excavator Co. v. Siedhoff (C. C. A.) 15 F. (2d) 10, 14; Graver Corporation v. Hercules Gasoline Co. (C. C. A.) 16 F.(2d) 459.

The scope of review was no broader, even if a written stipulation was filed waiving a jury in such cases, until the Act of Congress of March 3, 1865 (13 Stats. 500; U. S. Code, tit. 28, § 773 28 USCA § 773). The purpose of that act, and the limited review allowed since its enactment, if a written stipulation is filed, has been stated in Flanders v. Tweed, 9 Wall. 425, 19 L. Ed. 678, Kearney v. Case, 12 Wall. 275, 20 L. Ed. 395, and in many subsequent cases, but the relief afforded by that act is confined to cases in which a written stipulation is made. To obtain a review under the provisions of this act of Congress, the record must show a waiver by stipulation in writing. Bond v. Dustin, 112 U. S. 604, 606, 5 S. Ct. 296, 28 L. Ed. 835.

The record shows that the cause came on for hearing and that the plaintiff and defendants were present and represented by counsel and then it recites, "Whereupon, a jury having been waived by each of the parties, the...