Shipman v. Ohio Coal Exchange

• Decision Date: 06 November 1895
• Docket Number: 297.
• Citation: 70 F. 652
• Parties: SHIPMAN v. OHIO COAL EXCHANGE.
• Court: U.S. Court of Appeals — Sixth Circuit

70 F. 652

SHIPMAN v. OHIO COAL EXCHANGE.

No. 297.

United States Court of Appeals, Sixth Circuit.

November 6, 1895

This was an action upon an open account, begun in the Lucas county court of common pleas, and removed by the defendant, upon the ground of diversity of citizenship, into the circuit court of the United States. The account upon which the suit was brought embraced very large transactions, and was for coal sold and delivered to the plaintiff in error, or on his order, to the amount of $272,898.86, and was credited with payments aggregating $265,622.32. The suit was for a balance claimed to be due, of $7,276.48. The defendant, by pleadings authorized by the code practice of Ohio, denied any liability. After issue had been duly made up, a written stipulation was filed, by which the parties agreed that an order should be made referring the issues to a special master, to be appointed by the court, who should take evidence and report same to the court, together with his conclusions of fact and law. It was further provided that either party might file exceptions to this report, to be disposed of by the court, and the report confirmed, modified or re-referred, and that 'the rights of the parties hereto shall in all respects be as though the said action was one within the provisions of section 5222 of the Revised Statutes of Ohio. ' In compliance with this stipulation a special master was appointed, and a reference ordered in accordance with the agreement entered of record. A large mass of testimony was taken in writing by this special master bearing upon the issues submitted, and much documentary evidence received, all of which he reported to the court, together with his special findings of fact and his conclusions of law, upon which he found in favor of the plaintiff for $2,251.56, with interest from February 13, 1888. To the report the defendant filed a number of exceptions, all of which were overruled. The court then confirmed the report, and rendered judgment in favor of the plaintiff for the amount reported due. This judgment concludes with the recital that 'to all of which orders and rulings of the court overruling said exceptions of defendant, and giving judgment upon said report, the defendant hereby excepts. ' This constitutes the only statement of exceptions reserved upon the trial by the court. A bill of exceptions was drawn and allowed, which includes the stipulation for a reference, the report of the special master, including the whole of the evidence filed by him as an exhibit to his report or findings, and the exceptions filed by plaintiff in error to that report. Plaintiff in error then sued out this writ of error, and has assigned as error the action of the court in overruling the several exceptions filed to the report of the special master.

B. A. Hayes, for plaintiff in error.

Julian G. Dickinson and J. H. Hamilton, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and HAMMOND, J.

After stating the foregoing facts, the opinion of the court was delivered by LURTON, Circuit Judge.

The errors assigned do not arise upon the record independently of the bill of exceptions. Unless, therefore, the bill of exceptions has been regularly allowed the grounds assigned for reversal are not open for our consideration. The parties seem to have labored under the opinion that they could obtain a trial of the issues in the mode provided by section 5222 Rev. St. Ohio, and preserve to themselves all the modes of review by an appellate court admissible under the law of Ohio in cases properly within the terms of the section referred to. The statute referred to in the stipulation for a trial by a special master is expressly limited in its application to 'actions in which the parties are not entitled to a trial by jury. ' This action was a plain, simple action at law, and either party was entitled to have a trial by jury. The statute therefore had no application, even if the cause had been tried in the courts of Ohio. The stipulation that the rights of the parties should be 'in all respects as though the cause of action was within the provisions of section 5222, Rev. St. Ohio,' is unavailing. It neither enlarges nor contracts the rights of the parties in respect of the mode or authority of this court to revise on writ of error a judgment of the circuit court of the United States where there was no trial by jury. The whole subject of the preparation and allowance of bills of exception and of the granting of appeals or writs of error is independent of state statutes or state practice, and depends upon either the common law or the acts of congress regulating the subject. In re Chateaugay Ore & Iron Co., 128 U.S. 544, 9 Sup.Ct. 150; Andes v. Slauson, 130 U.S. 435, 9 Sup.Ct. 573; Insurance Co. v. Hamilton, 11 C.C.A. 42, 63 F. 93.

The trial thus ordered before a special master, on consent of the parties, was neither a trial by jury nor a trial by the court in accordance with section 649, Rev. St. U.S., but was a trial by a master sitting as a referee or arbitrator, under a rule of court, consented to by both parties. The practice of referring suits pending in courts of the United States to a referee or arbitrator, under a rule of court, consented to by the parties, has been sanctioned in a number of instances. Where there has been such a reference, only rulings...