Searcy County v. Thompson, 497.

• Decision Date: 21 January 1895
• Docket Number: 497.
• Citation: 66 F. 92
• Parties: SEARCY COUNTY v. THOMPSON.
• Court: U.S. Court of Appeals — Eighth Circuit

66 F. 92

SEARCY COUNTY v. THOMPSON.

No. 497.

United States Court of Appeals, Eighth Circuit.

January 21, 1895

Eben W Kimball and A. Y. Barr, filed brief for plaintiff in error.

H. M Hill (U. M. Rose, W. E. Hemingway, and G. B. Rose, on brief) for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This case was before this court on a previous occasion, and is reported in 12 U.S.App. 618, 6 C.C.A. 674, and 57 F. 1030. After the case was remanded by this court for a new trial Searcy county, the plaintiff in error, filed an amended answer, wherein it alleged, in substance, that the warrants sued upon were issued in pursuance of a fraudulent and unlawful agreement between the county and McCabe & Greenhaw, who were the contractors for building a courthouse for the county, whereby the price for doing the work was fixed at a sum known to be three times in excess of its actual value, to cover a known depreciation in the value of county warrants that were to be issued and received in payment for building the courthouse. A stipulation was filed, waiving a jury, and the case was subsequently tried before the court--resulting in a judgment in favor of Thompson, who was the plaintiff, for the sum of $23,500. The bill of exceptions in the present record contains a statement of the substance of the testimony that was adduced at the trial. It also shows that the trial court elected to make a general, rather than a special, finding, which finding is as follows:

'The case was then argued and submitted to the court, and the court found for the plaintiff, upon all of the warrants sued on and rendered judgment against the defendant for the sum of twenty-three thousand five hundred dollars and costs, from which judgment the defendant claimed an appeal; and time was allowed the defendant for sixty days from this date, to prepare and file its bill of exceptions herein.'

No exceptions were taken in the course of the trial, either to the admission or exclusion of testimony. Neither did the defendant ask an instruction in the nature of a demurrer to the evidence,-- that, on the proof offered, the plaintiff was not entitled to recover. Such being the condition of the record, we are confronted at the outset with the inquiry whether the record presents any question which this court can review.

Section 700 of the Revised Statutes, which was enacted on March 3, 1865 (13 Stat. 501), 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 six hundred and forty-nine, 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.'

In one of the earliest cases involving a construction of this statute, Dirst v. Morris, 14 Wall. 484, 491, Mr. Justice Bradley, in delivering the opinion of the supreme court of the United States, said:

'But, as the law stands, if the jury is waived, and the court chooses to find generally for one side or the other, the losing party has no redress, on error, except for the wrongful admission or rejection of evidence.'

In a subsequent case, in which a jury had been waived pursuant to the provisions of the aforesaid statute, the supreme court had occasion to consider whether it could review the action of the circuit court in refusing certain instructions that had been asked by the defendant. With reference to that question, the court said:

'Requests that the court would adopt certain conclusions of law were also presented by the defendants, in the nature of prayers for instruction, as in cases where the issues of fact are tried by a jury, which were refused by the circuit court, and the defendants also excepted to such refusals. None of these exceptions have respect to the rulings of the court in admitting or rejecting evidence, nor to any other ruling of the circuit court which can properly be denominated a ruling in the progress of the trial, as every one of the refusals excepted to appertain to some request made to affect or control the final conclusion of the court as to the plaintiff's right to recover. Such requests or prayers for instruction, in the opinion of the court, are not the proper subjects of exception in cases where a jury is waived, and the issues of fact are submitted to the determination of the court. ' Insurance Co. v. Folsom, 18 Wall. 237, 253.

In the case of Cooper v. Omohundro, 19 Wall. 65, 69, which was also a case that had been tried by the court without the intervention of a jury, it appeared that five instructions had been asked by the defendant which were refused by the circuit court, and the refusal of the same was assigned for error. One of these instructions was in the following form:

'(5) That, upon the whole case, judgment should be for the defendant.'

Concerning the alleged errors, Mr. Justice Clifford, in delivering the opinion of the supreme court, said:

'Beyond all doubt, the only effect of the exception to the refusal of the court to grant the fifth request, if the exception is admitted to be well taken, will be to require the court here to review the finding of the circuit court in a case where the finding is general, and where it is unaccompanied by any authorized statement of the facts, which it is plain this court cannot do, for the reasons given in the opinion of the court in the case of Insurance Co. v. Folsom, decided at the present time. Our decision in that case was, that in a case where issues of fact are submitted to the circuit court, and the finding is general, nothing is open to review by the losing party, under a writ of error, except the rulings of the circuit 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 finding, which certainly disposes of the exceptions to the refusals of the circuit court to decide and rule as requested in the first four prayers presented by the defendant, as it is clear that those exceptions seek to review certain conclusions of the circuit court which are necessarily embodied in the general finding of the circuit court.'

In the case of Martinton v. Fairbanks, 112 U.S. 670, 675, 676, 5 Sup.Ct. 321, the following statement is found with reference to the act of March 3, 1865, which is now under consideration. The court said:

'Prior to the enactment of the act of March 3, 1865 (now sections 649, 700, Rev. St. U.S.), it was held by this court that 'when the case is submitted to the judge to find the facts, without the intervention of a jury, he acts as a referee by consent of the parties, and no bill of exceptions will lie to his reception or rejection of testimony nor to his judgment on the law,' * * * and that 'no exception can be taken where there is no jury, and where the question of law is decided in delivering the final judgment of the court.' * * * Section 4 of the act of March 3, 1865, was passed to allow the parties, where, a jury being waived, the case was tried by the court, a review of such rulings of the court in the progress of the trial as were excepted to at the time and duly presented by bill of exceptions, and also a review of the judgment of the court upon the question whether the facts specially found by the court were sufficient to support its judgment. In other respects the old law remained unchanged. In the present case the bill of exceptions presents no ruling of the court made in the progress of the trial, and there is no special finding of facts. The general finding is conclusive of the issues of fact against the plaintiff in error, and there is no question of law presented by the record of which we can take cognizance.'

Again, in Stanley v. Supervisors of Albany, 121 U.S. 535, 547, 7 Sup.Ct. 1234, it was said by Mr. Justice Field, in delivering the opinion of the supreme court, that:

'Where a case is tried by the court without a jury, its findings upon questions of fact are conclusive here. It matters not how convincing the argument that upon the evidence the findings should have been different.'

It is also well settled that 'a special finding of facts,' in the sense in which that phrase is used in the statute, is not a mere report of all the evidence adduced at the trial, but consists of a statement of the ultimate conclusions of the trial court upon issues of fact raised by the pleadings. Norris v. Jackson, 9 Wall. 125; Burr v. Des Moines Co., 1 Wall. 99, 102.

The decisions in Insurance Co. v. Folsom and Cooper v. Omohundro, supra, were cited and approved in the late case of Lehnen v. Dickson, 148 U.S. 71, 73, 13 Sup.Ct. 481; and, so far as we are aware, the doctrine enunciated in those cases has never been criticised or overruled by the supreme court. It is true, however, as has been suggested, that in the case of Clement v. Insurance Co., 7 Blatchf. 51, Fed. Cas. No. 2,882, Judge Blatchford, while circuit judge, gave expression to some views which seem to be at variance with the ruling of the supreme court in the cases heretofore cited.

But it is to be noted that the case of Clement v. Insurance Co. was decided by Judge Blatchford some two years prior to the decisions in Dirst v. Morris and in Insurance Co. v. Folsom so that at the present time the decision in question cannot be regarded as authoritative. It becomes necessary, therefore, to apply the doctrine above stated to the case at bar. The plaintiff in error asked...