Perry v. Wiggins, 9154.

• Decision Date: 02 May 1932
• Docket Number: No. 9154.,9154.
• Parties: PERRY v. WIGGINS.
• Court: U.S. Court of Appeals — Eighth Circuit

57 F.2d 622 (1931)

PERRY v. WIGGINS.

No. 9154.

Circuit Court of Appeals, Eighth Circuit.

August 17, 1931.

As Modified on Denial of Rehearing, November 13, 1931.

Supplemental Petition for Rehearing Denied May 2, 1932.

Paul Bakewell, Jr., of St. Louis, Mo., for appellant.

Daniel N. Kirby, of St. Louis, Mo. (Ethan A. H. Shepley, of St. Louis, Mo., on the brief), for appellee.

Before STONE and GARDNER, Circuit Judges, and YOUMANS, District Judge.

GARDNER, Circuit Judge.

This is an action at law to determine adverse claims to an undivided one-twelfth interest in certain real estate situate in the city of St. Louis, Mo., as provided for by certain Missouri statutes which permit such an action, even though neither of the parties is in actual possession of the property. A jury was waived by stipulation in writing, and the facts as agreed upon were submitted to the court in form of stipulation. As stated in appellant's brief, "while both parties claim under the will of John E. Liggett, this is not an action in equity to construe said will, but is an action at law to determine legal titles derived under said will." The court entered judgment in favor of the appellee, and in connection therewith entered specific findings, embodying by reference the stipulated facts. There was no request for declarations of law, and no exceptions were filed to the findings or declarations of law contained in the judgment, and, in fact, no exceptions of any kind are contained in the record. In this condition of the record, what is presented for review in this court?

Section 875, title 28, USCA, provides: "When an issue of fact in any civil cause in a district court is tried and determined by the court without the intervention of a jury, according to section 773 of this title, the rulings of the court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed upon a writ of error or upon appeal; and when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment."

Section 773, title 28, USCA, provides: "Issues of fact in civil cases in any district court may be tried and determined by the court, without the intervention of a jury, whenever the parties, or their attorneys of record, file with the clerk a stipulation in writing waiving a jury. The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury."

It is well settled that in the absence of such a stipulation, the review of an action at law tried by the court without a jury is limited to questions arising on the primary record, consisting of the process pleadings and judgment. Commissioners of Road Improvement Dist. # 2 v. St. Louis S. W. Ry. Co., 257 U. S. 547, 42 S. Ct. 250, 66 L. Ed. 364; Duignan v. United States, 274 U. S. 195, 47 S. Ct. 566, 71 L. Ed. 996; National City Bank v. Kimball Commercial & Savings Bank (C. C. A. 8th) 2 F.(2d) 461. In law actions, the questions open for review on appeal to this court are by statute limited to errors of law. Section 879, title 28, USCA; Federal I. C. Bank v. L'Herisson (C. C. A. 8th) 33 F. (2d) 841; First Natl. Bank v. Litteer (C. C. A. 8th) 10 F.(2d) 447; Wear v. Imperial Glass Co. (C. C. A. 8th) 224 F. 60; White v. United States (C.C.A. 10th) 48 F.(2d) 178, 179.

Section 773, title 28, USCA, provides that the findings of the court may be either general or special, and shall have the same effect as the verdict of a jury. A general finding in a jury-waived case has the effect of the general verdict of a jury, and where a party interposes a motion for judgment in his favor, or asks for a declaration of law that he is entitled to judgment, he may, on appeal, raise the question of law whether he was entitled to judgment upon all the evidence, and this question, if preserved by a proper bill of exceptions, will be reviewed notwithstanding a general finding in favor of the adverse party. Maryland Casualty Co. v. Jones, 279 U. S. 792, 49 S. Ct. 484, 73 L. Ed. 960; Barnard v. Randle (C. C. A. 8th) 110 F. 906; Seep v. Ferris-Haggarty Co. (C. C. A. 8th) 201 F. 893.

Where the parties make and file a stipulation of the ultimate facts, or the court makes specific findings of the ultimate facts, then, on appeal, the sufficiency of such facts to support the judgment presents a question of law which is reviewable, even though no exceptions were saved. Seeberger v. Schlesinger, 152 U. S. 581, 14 S. Ct. 729, 38 L. Ed. 560; Abernathy v. Oklahoma (C. C. A. 8th) 31 F.(2d) 547; Tatum v. Davis (C. C. A. 8th) 283 F. 948; Wilson v. Merchants' L. & T. Co., 183 U. S. 121, 22 S. Ct. 55, 46 L. Ed. 113; United States Tr. Co. v. New Mexico, 183 U. S. 535, 22 S. Ct. 172, 46 L. Ed. 315; White v. United States (C. C. A. 10th) 48 F.(2d) 178, 179.

Such a stipulation as to facts, or such special findings must be of ultimate facts, as distinguished from the evidentiary facts. Wilson v. Merchants' L. & T. Co., supra; United States Trust Co. v. New Mexico, supra; United States v. Sioux City Stock Yards (C. C. A. 8th) 167 F. 126.

If the agreed facts in this case, or the special findings made by the lower court, are ultimate facts, then the record presents questions for review. If, however, the agreed facts and the special findings of fact are merely evidentiary in their nature, they may not be examined on this record for the purpose of determining whether the evidentiary facts support the judgment rendered, because no exceptions were saved in the record. The practice is settled by controlling precedents of the Supreme Court of the United States. Wayne County v. Kennicott, 103 U. S. 554, 26 L. Ed. 486; Wilson v. Merchants' L. & T. Co., 183 U. S. 121, 22 S. Ct. 55, 58, 46 L. Ed. 113; United States Trust Co. v. New Mexico, 183 U. S. 535, 22 S. Ct. 172, 174, 46 L. Ed. 315; Tatum v. Davis (C. C. A. 8th) 283 F. 948; Abernathy v. Oklahoma (C. C. A. 8th) 31 F.(2d) 547; White v. United States (C. C. A. 10th) 48 F.(2d) 178, 179.

In Wilson v. Merchants' L. & Tr. Co., supra, in discussing this question of practice, the Supreme Court said:

"The result of the decisions under the statutes providing for a waiver of trial by jury, and the proceedings on a trial by the court (Rev. Stat. §§ 649, 700), is that when there are special findings they must be findings of what are termed ultimate facts, and not the evidence from which such facts might be but are not found. If, therefore, an agreed statement contains certain facts of that nature, and in addition thereto and as part of such statement there are other facts of an evidential character only, from which a material ultimate fact might be inferred, but which is not agreed upon or found, we cannot find it, and we cannot decide the case on the ultimate facts agreed upon without reference to such other facts. In such case we must be limited to the general finding by the court. We are so limited because the agreed statement is not a compliance with the statute. * * *

"In this case the finding is general, and, strictly construing the statute, the only questions which would be reviewable would be those questions which arose during the progress of the trial, and which were presented by bill of exceptions. It has, however, been held that where there was an agreed statement of facts submitted to the trial court and upon which its judgment was founded, such agreed statement would be taken as an equivalent of a special finding of facts. Supervisors v. Kennicott, 103 U. S. 554, 26 L. Ed. 486. But as such equivalent, there must of course be a finding or an agreement upon all ultimate facts, and the statement must not merely present evidence from which such facts or any of them may be inferred." (Italics ours.)

Again the Supreme Court, in United States Trust Co. v. New Mexico, supra, in an opinion by Mr. Justice Brewer, said: "An agreed statement of facts may be the equivalent of a special verdict or a finding of facts upon which a reviewing court may declare the applicable law, if such agreed statement is of the ultimate facts, but if it be merely a recital of testimony or evidential facts, it brings nothing before an appellate court for consideration."

In view of these limitations upon this court, it is necessary to examine the nature of the agreed statement of facts and the special findings, for the purpose of determining whether they are ultimate facts, or only evidential in character. The agreed statement is in paragraphs bearing numbers. Paragraph 1 recites the death of John E. Liggett, leaving a will, which was probated, and then sets out a copy of the will. Paragraph 2 recites that there were two codicils to the will, but they are irrelevant here. Paragraph 3 enumerates the heirs, next of kin, and legatees of Liggett. Paragraph 4 recites that John E. Liggett, Jr., a devisee under the will, became thirty years of age on April 4, 1916, and that the trusts created by the will, partly for the benefit of said John E. Liggett, Jr., terminated, and that by decree of the circuit court of the city of St. Louis, Mo., there was divided and allotted to said John E. Liggett, Jr., a one-fourth share of the trust estate. Paragraph 5 recites the parties to the suit mentioned, including the trustees and all of the then living descendants of the testator; that the purpose of the suit included the ascertainment and adjustment of what assets were then held in said trusts, and adjudication that the trust period had expired, the settlement and approval of accounts of the trustees, and a division, allotment, and distribution to John E. Liggett, Jr., of his interest in the trust estate. Paragraph 6 recites that by the decree, the remaining three-fourths share of the trust...