Sierra Land & Live Stock Co. v. Desert Power & Mill Co.

• Decision Date: 07 February 1916
• Docket Number: 2619.
• Citation: 229 F. 982
• Parties: SIERRA LAND & LIVE STOCK CO. v. DESERT POWER & MILL CO.
• Court: U.S. Court of Appeals — Ninth Circuit

229 F. 982

SIERRA LAND & LIVE STOCK CO. v. DESERT POWER & MILL CO.

No. 2619.

United States Court of Appeals, Ninth Circuit.

February 7, 1916

Sweeney & Morehouse, of Reno, Nev., for plaintiff in error.

Hugh H Brown and J. H. Evans, both of Tonopah, Nev., for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and RUDKIN, District Judge.

RUDKIN District Judge.

This was an action to recover damages for the loss of a band of sheep, poisoned by cyanide which escaped from the milling and reduction works of the defendant in error, near the town of Millers, in Esmeralda county, Nev. By stipulation of parties the case was tried by the court without the intervention of a jury. The court made the general finding, 'And the court having fully considered the premises, finds the issue in favor of the defendant ' and entered a judgment accordingly. To reverse this judgment the present writ of error was sued out.

Section 700 of the Revised Statutes (Comp. St. 1913, Sec. 1668) provides:

'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.'

Under this section it has been repeatedly held by the Supreme Court that an appellate court cannot, on writ of error, inquire into the sufficiency of the testimony to support a general finding. Thus in Dirst v. Morris, 14 Wall. 484, 491 (20 L.Ed. 722), the court said:

'But, as the law stands, if a 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 Insurance Co. v. Folsom, 18 Wall. 237, 254 (21 L.Ed. 827), the court said:

'Like a special verdict, a special finding furnishes the means of reviewing such questions of law arising in the case as respect the sufficiency of the facts found to support the judgment; but where the finding is general the losing party cannot claim the right to review any questions of law arising in the case, except such as grow out of the rulings of the Circuit Court in the progress of the trial, which do not in any proper sense include the general finding of the Circuit Court, nor the conclusions of the Circuit Court embodied in such general finding, as such findings are in the nature of a general verdict and constitute the foundation of the judgment.'

To the same effect, see Cooper v. Omohundro, 19 Wall. 65, 22 L.Ed. 47.

In Stanley v. Supervisors of Albany, 121 U.S. 535, 547, 7 Sup.Ct. 1234, 1238 (30 L.Ed. 1000) the court said:

'And the first assignment of error is that the court erred in deciding that the plaintiff failed to establish the allegations mentioned, and the greater part of the oral argument of the plaintiff's counsel and of his printed brief was devoted to the maintenance of this proposition, which is nothing more than that the court below found against the evidence-- a question not open to review or consideration in this court. Only rulings upon matters of law, when properly presented in a bill of exceptions, can be considered here, in addition to the question, when the findings are special, whether the facts found are sufficient to sustain the judgment rendered. This limitation upon our revisory power on a writ of error in such cases is by express statutory enactment. Act March 3, 1865, Sec. 4, 13 Stat.c. 86; Rev. Stat. Sec. 700.'

In Lehnen v. Dickson, 148 U.S. 71, 73, 13 Sup.Ct. 481 482 (37 L.Ed. 373), after quoting section...