Town of Martinton v. Fairbanks

• Decision Date: 05 January 1885
• Citation: 5 S.Ct. 321,28 L.Ed. 862,112 U.S. 670
• Parties: TOWN OF MARTINTON v. FAIRBANKS
• Court: U.S. Supreme Court

112 U.S. 670

5 S.Ct. 321

28 L.Ed. 862

TOWN OF MARTINTON v. FAIRBANKS.

January 5, 1885.

Robert Doyle, for plaintiff in error.

Thomas S. McClelland and Geo. A. Sanders, for defendant in error.

WOODS, J.

Two actions of assumpsit were brought by Fairbanks, the defendant in error, against the town of Martinton, the plaintiff in error. One action was brought upon what the declaration alleges to be 'certain instruments in writing, called promissory notes or bonds or railroad bonds,' made and issued by the town. They were not under seal, and were payable to bearer. The other was based on the coupons or interest warrants, also not under seal, which had belonged to and had been detached from the said bonds. The declaration in both cases was in the form used in the action of assumpsit. The plea in both cases was the general issue. The two suits were, by the agreement of the parties and consent of the court, consolidated and tried together. The parties filed with the clerk a stipulation in writing by which they waived a trial by jury. The causes were thereupon tried by the court as one case, and its action was thus stated upon the record: 'After hearing the evidence, the court finds the issue for the plaintiff, and assesses his damages at eleven thousand two hundred and nine dollars.' Upon this finding the court entered judgment for the plaintiff for the damages so assessed. During the trial a bill of exceptions was taken which simply set out all the evidence in the case, and closed as follows: 'Which was all the evidence offered in said causes; on which evidence the court found for the plaintiff in the sum of $11,209, and entered judgment accordingly; to all of which said defendant then and there excepted. And, as said facts do not appear of record, this bill of exceptions is prepared, and we ask that the judge may sign and seal the same, and it is done accordingly.'

There was no demurrer to the declaration or other exception to the sufficiency of the pleadings, no exception to the rulings of the court in the progress of the trial, in the admission or exclusion of evidence, or otherwise, no request for a ruling upon the legal sufficiency or effect of the whole evidence and there was no motion in arrest of judgment. The only matter presented by the bill of exceptions which this court is asked to review arises upon the exception to the general finding by the court for the plaintiff upon the evidence adduced at the trial. The defendant in error insists that, upon this state of the record, no question of law is presented which the court here can review. We think this contention is well founded. The provisions of the acts of congress which relate to the trial of issues of fact by the court are found in section 22 of the act of September 24, 1789, (1 St. 73, c. 20,) 'An act to establish the judicial courts of the United States,' and in section 4 of the act of March 3, 1865, (13 St. 500, c. 86,) 'An act regulating proceedings in criminal cases, and for other purposes.' The provision in the act of 1789 is reproduced in section 1011 of the Revised Statutes, as follows: 'There shall be no reversal in the supreme court or in any circuit court upon a writ of error * * * for any error of fact.' The provisions of the act of 1865 are reproduced in sections 649 and 700 of the Revised Statutes, as follows: Sec. 649. 'Issues of fact in civil cases in any circuit court may be tried and determined by the court without the intervention of a jury whenever the parties, or their attorneys of record, file with the clerk a stipulation in writing waiving 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.' Sec. 700. '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 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.'

The provision of section 1011, Revised Statutes, continues in force and forbids a reversal of the judgment of the circuit court for any error of fact. Upon the issues of fact raised by the pleadings in this case there was a general finding for the plaintiff. The defendant contends that the evidence submitted to the court did not justify this general finding. But, if the finding depends upon the weighing of conflicting evidence, it was a decision on the facts, the revision of which is forbidden to this court by section 1011. If the question was whether all the evidence was sufficient in law to warrant a finding for the plaintiff, he should have presented that question, by a request for a definite ruling upon that point. Sections 649 and 700 were first fully construed by this court in Norris v. Jackson, 9 Wall. 125. The court, in that case speak- ing by Mr. Justice MILLER, laid down the following propositions: '(1) If the verdict be a general verdict, only such rulings of the court in the progress of the trial can be reviewed as are presented by bill of exceptions, or are presented by the pleadings; (2) in such cases a bill of exceptions cannot be used to bring up the whole testimony for review any more than in a jury trial; (3) if the parties desire a review of the law involved in the case, they must either get the court to find a special verdict which raises the legal propositions, or they must present to the court their propositions of law and require the court to rule on them; (4) objection to the admission or exclusion of evidence, or to such ruling on the propositions of law as the party may ask, must appear by bill of exceptions.' These propositions have been persistingly adhered to by this court. Thus, in Miller v. Life Ins. Co. 12 Wall. 298, it was said: '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 said: 'When 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 a bill of exceptions brings up nothing for revision except what it would have done had there been a jury trial.' So in Cooper v. Omohundro, 19 Wall. 65, this court, affirming the case last cited, held that '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 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 finding.' See, also, Town of Ohio v. Marcy, 18 Wall. 552; Insurance Co. v. Sea, 21 Wall. 158; ...