Rhodes v. United States Nat. Bank

• Decision Date: 23 February 1895
• Docket Number: 185.
• Citation: 66 F. 512
• Parties: RHODES v. UNITED STATES NAT. BANK.
• Court: U.S. Court of Appeals — Seventh Circuit

66 F. 512

RHODES v. UNITED STATES NAT. BANK.

No. 185.

United States Court of Appeals, Seventh Circuit.

February 23, 1895

Anson B. Jenks, for plaintiff in error.

E. A Otis, for defendant in error.

Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge.

BUNN District Judge.

This is an action of assumpsit, brought by the United States National Bank, a Kansas corporation, against J. Foster Rhodes, a citizen of Illinois, to enforce a stock liability under the constitution and laws of Kansas upon stockholders of insolvent corporations created under the laws of that state. The declaration charges that a corporation known as the United States Building Company was incorporated on the 21st of December, 1886, under and pursuant to the provisions of chapter 23 of the General Statutes of the state of Kansas, of 1868, and which afterwards became indebted to the defendant in error (the plaintiff below) in the sum of $22,000, on which a judgment was recovered in the state court for the proper district in Kansas on December 9, 1890; that execution was issued upon said judgment, and returned unsatisfied; that Rhodes was a stockholder in the building company to the extent of 75 shares, of the par value of $100 each, amounting in all to $7,500; that the building company is insolvent, and has no property or means of paying its debts, except the stock liability of its stockholders; and claims judgment for the amount of $7,500. The declaration also contains the usual common counts in assumpsit. The defendant pleaded the general issue, and also specially that the plaintiff was itself a stockholder in the building company, and liable with the other stockholders for its debts; and that he, the defendant was not a stockholder, and so not responsible for its debts. There was a general replication put in to the several pleas a jury trial waived, the cause tried by the court, and a general finding of facts upon all the issues in the case, and a judgment for the plaintiff for the amount claimed. A general exception only was taken to the finding of the court. There was no special finding, and no request to find specially upon the facts, and no exception taken by the defendant that no special finding was made. There was a bill of exceptions signed in the case and made a part of the record containing the evidence, but it is clear that this court cannot review the facts, but must take the finding of facts made by the court, general as it is, for the facts upon which to apply the law. The court has, moreover, had some difficulty in reaching the main question of law argued by counsel and relied upon by the plaintiff in error as to the liability of the defendant in an action at law brought outside the limits of the state of Kansas under the constitution and laws of that state, relating to the subject of the personal liability of stockholders in such a case, because of the state of the record as before set forth, the exceptions taken on trial, and the assignments of error not being properly framed for the purpose. Without looking into the evidence, it is difficult to see how the court can say that the judgment is based upon any particular count or cause of action in the declaration, upon the first count setting forth defendant's liability as a stockholder, or upon one or other of the common counts. The finding is general, and covers all the issues in the case. A finding by the court takes the place of a verdict of a jury, and a general exception to such finding is of no more avail than a general exception to a verdict. See Rev. St. Sec. 649, which provides that:

'Issues of fact in civil cases in any circuit court may be tried and determined by the court without the intervention of 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.'

And section 700 provides that:

'When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to section 469, 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 by the supreme court 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.'

This statute was first given a construction by the supreme court in Norris v. Jackson, 9 Wall. 125, where the court in an opinion by Mr. Justice Miller say:

'The first thing to be observed in the enactment made by the fourth section of the act of the 3d of March, 1865, allowing parties to submit issues of fact in civil cases to be tried and determined by the court, is that it provides for two kinds of findings in regard to the facts, to wit, general and special. This is in perfect analogy to the findings by a jury, for which the court is in such cases substituted by the consent of the parties. In other words, the court finds a general verdict on all the issues for plaintiff or defendant, or it finds a special verdict. This special finding has often been considered and described by this court. It is not a mere report of the evidence, but a statement of the ultimate facts on which the law of the case must determine the rights of the parties; a finding of the propositions of fact which the evidence establishes, and not the evidence on which those ultimate facts are supposed to rest. The next thing to be observed is that, whether the finding be general or special, it shall have the same effect as the verdict of a jury; that is to say, it is conclusive as to the facts so found. In the case of a general verdict, which includes, or may include, as it generally does, mixed questions of law and fact, it concludes both, except so far as they may be saved by some exception which the party has taken to the ruling of the court on the law. In the case of a special verdict, the question is presented as it would be if tried by a jury, whether the facts thus found require a judgment for plaintiff or defendant; and, this being matter of law, the ruling of the court on it can be reviewed in this court on that record. If there were such special verdict here, we could examine its sufficiency to sustain the judgment; but there is none. The bill of exceptions, while professing to detail all the evidence, is no special finding of facts. The judgment of the court, then, must be affirmed, unless the bill of exceptions presents some erroneous ruling of the court in the progress of the trial.'

This construction has always been adhered to in subsequent cases in the same court. Miller v. Insurance Co., 12 Wall. 285; Dirst v. Morris, 14 Wall. 484; Insurance Co. v. Folsom, 18 Wall. 237; Cooper v. Omohundro, 19 Wall. 65; British Queen Min. Co. v. Baker Silver Min. Co., 139 U.S. 222, 11 Sup.Ct. 523.

In Miller v. Insurance Co. the court say:

'The finding of the court, if general, cannot be reviewed in this court by bill of exceptions or in any other manner.'

In Insurance Co. v. Folsom, 18 Wall. 237, the court say:

'Where the finding is general, the parties are concluded by the determination of the court, except in cases where exceptions are taken to the rulings of the court in the progress of the trial. * * * When a case is tried by the court without a jury, the bill of exceptions brings up nothing for revision except what it would have done had there been a jury trial.'

In Cooper v. Omohundro, the court reaffirm the former rulings, and say:

'When issues of fact are submitted to the circuit court, and the finding is general, nothing is open to review, * * * except the rulings of the circuit court in the progress of the trial, and the phrase 'rulings of the court in the progress of the trial,' does not include the general finding of the circuit court, nor the conclusions of the circuit court embodied in such general findings.'

In Martinton v. Fairbanks, 5 Sup.Ct. 321, the cases are reviewed, and the same doctrine again asserted. The court say:

'The proposition that the general finding of the court in this case is open to review is in direct opposition to the rulings of the court in the cases cited. The plaintiff in error seeks to make the question whether the evidence set out in the bill of exceptions justified the finding by the court for the plaintiff of the issue of fact raised by the pleadings. This is, in defiance of the decision of this court that it cannot be done, an attempt upon a general finding to bring up the whole testimony for review by a bill of exceptions. The theory of the plaintiff in error seems to be that the general finding in this case, like a general verdict, includes questions of both law and fact, and that, by excepting to the general finding, he excepts to such conclusions of law as the general finding implies. But section 649, Rev. St., provides that the finding of the court, whether general or special, shall have the same effect as the verdict of a jury. The general verdict of a jury concludes mixed questions of law and fact, except so far as they may be saved by some exception which the party has taken to the ruling of the court upon a question of law. * * * But the plaintiff in error has taken no such exception. By excepting to the general finding of the court it is in the same position as if it had submitted its case

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