Seep v. Ferris-Haggarty Copper Mining Co.

• Decision Date: 06 November 1912
• Docket Number: 3,653.
• Citation: 201 F. 893
• Parties: SEEP v. FERRIS-HAGGARTY COPPER MINING CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

201 F. 893

SEEP v. FERRIS-HAGGARTY COPPER MINING CO. et al.

No. 3,653.

United States Court of Appeals, Eighth Circuit.

November 6, 1912

Horace N. Hawkins, of Denver, Colo., for plaintiff in error.

Charles E. Blydenburgh and A. McMicken, both of Rawlins, Wyo. for defendants in error.

Before SANBORN and CARLAND, Circuit Judges, and WM. H. MUNGER district judge.

WM. H MUNGER, District Judge.

This was an action at law. A jury was waived, and trial had to the court, which made a general finding for defendant, and entered judgment thereon. The assignments of error are:

'First. The court erred in finding for the defendants.

'Second. The court erred in rendering judgment against the plaintiff in error.

'Third. The court erred in rendering judgment that the defendants go hence without day.

'Fourth. The court erred in rendering judgment that the defendants recover of the plaintiff the costs of the cause.

'Fifth. The court erred in not finding for the plaintiff.

'Sixth. The court erred in not awarding the plaintiff judgment as prayed for in the petition.'

Plaintiff tendered to the court no request for any finding of fact or law, or for judgment in his favor. Such being the case, under numerous decisions of the Supreme Court and this court, there is nothing which this court can review. Mercantile Trust Co. v. Wood, 60 F. 346-348, 8 C.C.A. 658; United States Fidelity & G. Co. v. Board of Com'rs, 145 F. 144-151, 76 C.C.A. 114; Nat'l Surety Co. v. United States for the use, etc., 200 F. 142, decided at this term, and cases therein cited.

As the same question is presented at nearly every term of this court, and in three different cases at the present term, we will restate the rules heretofore announced essential to obtain a review of a judgment in an action at law, in which a jury is waived and the case tried to the court.

In Mercantile Trust Co. v. Wood, supra, Judge Sanborn, writing the opinion, said:

'When a case comes to this court upon a writ of error, this is a court for the correction of the errors of the court below solely. To enable us to review those errors in a case tried by the court, it must appear that the legal propositions on which they rest were presented to that court and ruled upon before the trial ended.'

And in the same opinion it is stated:

'There are only two methods by which questions of law can be so presented to the court that tries the facts that this court can review them by writ of error. These methods are: First, by seasonable objections and exceptions to the rulings of the court upon the admission or rejection of evidence; and, second, by requesting the court, before the trial is ended, to make declarations of law, and excepting to its refusal to do so, and to its declarations of law, if any, that do not accord with the propositions asked, in exactly the same way as instructions to a jury would be requested, and the rulings of the court giving or refusing them would be excepted to, if the trial was before a jury. The finding of the court, whether general or special, performs the office of a verdict of a jury. When it is made and filed, the trial is ended.'

Again, in United States Fidelity & G. Co. v. Board of Com'rs, supra, the same judge said:

'The question whether or not at the close of a trial there is substantial evidence to sustain a finding in favor of a party to the action is a question of law which arises in the progress of the trial. In a trial to a jury it is reviewable on an exception to a ruling upon a request for a peremptory instruction. In a trial by the court without a jury it is...