United States ex rel. Deimel v. Arnold

• Decision Date: 07 October 1895
• Docket Number: 228.,221
• Citation: 69 F. 987
• Parties: UNITED STATES ex rel. DEIMEL v. ARNOLD, United States Marshal. DEIMEL et al. v. STROHEIM et al.
• Court: U.S. Court of Appeals — Seventh Circuit

69 F. 987

UNITED STATES ex rel. DEIMEL v. ARNOLD, United States Marshal.

DEIMEL et al. v. STROHEIM et al.

Nos. 221, 228.

United States Court of Appeals, Seventh Circuit.

October 7, 1895

Hiram T. Gilbert, for appellant.

T. A Moran, Adolf Kraus, and I. H. Mayer, for appellee.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

WOODS Circuit Judge.

These cases were submitted together. Rudolph Deimel, the relator in the first, and one of the appellants in the second case applied to the circuit court for the writ of habeas corpus alleging that he was held in unlawful imprisonment by virtue of a writ of capias ad satisfaciendum issued on a judgment rendered against him by that court on the 23d day of July 1894, in an action on the case for deceit, wherein Julius Stroheim and Salo J. Stroheim were plaintiffs and the relator and another were defendants. It is averred as ground for the application that the judgment was the result of a trial by the court without a jury, and that neither the relator nor his codefendant, 'either or both of them, ever executed a formal waiver in writing of a trial by jury' in the cause, and that under the act of June 17, 1893 (Laws Ill. 1893, p. 96), whereby it is provided 'that no person shall be imprisoned for non-payment of a fine or a judgment in any civil, criminal, quasi criminal, or qui tam action, except upon conviction by jury; provided, * * * that when such waiver of jury is made, imprisonment may follow judgment of the court without conviction by jury,' the writ of capias ad satisfaciendum was unauthorized, and the imprisonment of the relator was illegal. The record of the case shows that on January 9, 1893, the issues having been made up, a stipulation entitled in the cause and signed by the names of attorneys for the plaintiffs and defendants respectively was filed, which reads:

'It is hereby stipulated and agreed by and between the parties that a trial by jury in the above-entitled cause shall be waived, and that the cause shall be submitted to the court for trial to be tried by Judge Grosscup.' The trial, commencing March 28th, was had before Judge Bunn, district judge of the Western district of Wisconsin, who had been designated to hold the court, and his findings of fact, entered of record July 23, 1894, contain the following recital:

'This cause coming on now to be heard before the court without the intervention of a jury, a jury having heretofore been expressly waived by stipulation in writing of all the parties hereto, which said stipulation was heretofore duly filed herein by the attorneys of record for the parties to this suit with the clerk of this court.'

And the entry of judgment, made the same day, contains this recital:

'On the stipulation in writing of all the parties hereto heretofore duly filed herein by the attorneys of record for the parties to this suit with the clerk of this court, this cause is submitted to the court for trial without the intervention of a jury.'

A bill of exceptions, signed the 23d day of August, and filed September 17, 1894, a copy of which was attached to and made a part of the petition, shows, among other things, that on several occasions after the 1st day of January and before the 28th day of March, 1894, both of the defendants in open court, by their counsel, expressly consented and agreed that the cause might and should be tried before Judge Bunn without a jury, and that with such consent, given in open court by counsel for both parties, the cause had been set peremptorily for hearing before Judge Bunn on March 28, 1894, but on that day, when the case was called, and before entering upon the trial, the defendants, by counsel, in open court 'objected to the trial of the cause before Judge Bunn,' basing their objection solely and exclusively upon the stipulation of January 9, 1893, already quoted, which was produced and read, and which, the bill states, 'was the only stipulation or waiver in writing filed in said cause for the submission of said cause for trial without a jury.'

The writ having been granted, issued, and served upon the marshal, that officer made return that he held the petitioner by virtue of the writ of capias ad satisfaciendum aforesaid, a copy of which was set out in the return; and afterwards, the cause having come on to be heard on the motion of the petitioner to be released from imprisonment, the court, upon consideration of the petition, the return of the marshal, and the evidence adduced, consisting of the bill of exceptions set out in the petition, which was admitted over objection, the docket entries of the findings and judgment upon which the writ of capias ad satisfaciendum issued, and a copy of that writ, denied the motion, and ordered the petitioner remanded to the custody of the marshal. These rulings are assigned as error in the first case.

In the other case,-- No. 228,-- wherein was rendered the judgment on which the writ of capias ad satisfaciendum was issued, it is shown by a bill of exceptions that on November 28, 1894, the defendants moved the court to correct the entry of the judgment as made July 23, 1894, so as to show that the stipulation referred to in the recital waiving a jury was signed, not by the parties, but by their attorneys of record, and in support of this motion, were allowed, over objection, to read the bill of exceptions, the substance of which has already been stated; and the plaintiffs having offered in evidence the findings of fact signed by the judge, the court overruled the motion. It appears by another bill of exceptions that on the 20th day of December, 1894, both parties being present by attorneys, the defendants moved the court to recall and quash the writ of capias ad satisfaciendum, and in support of the motion, besides showing the issue of the writ, made proof of the arrest thereunder of the defendant, of the proceedings on the application for the writ of habeas corpus, as already detailed, of the appeal taken to this court, and has offered in evidence the bill of exceptions, before mentioned, and, the plaintiffs having put in evidence the judgment entry, the court overruled the motion.

The errors assigned in this case are upon the finding that the jury had been waived by stipulation in writing by the parties, upon the recital to the same effect in the entry of judgment, upon the trying of the cause by Judge Bunn without a jury, and upon the overruling of the motion to correct the entry of judgment.

It has been conceded in argument that there was no error in the mere fact of trial, without a jury, by the judge who presided. That was warranted by the oral consent shown to have been given by counsel in open court,-- saying nothing of the written stipulation which was upon file. The other assignments are equally unavailing. If, as contended by counsel for the plaintiff in error, the written waiver of a jury was upon condition that the trial should be before the particular judge named, and the trial before another judge was lawful only because of the oral consent thereto, still there can be no review touching either the finding or the judgment. It has been often so decided. Kearney v Case, 12 Wall. 275; Madison Co. v. Warren, 106 U.S. 622, 2 Sup.Ct. 86; Bond v. Dustin, 112 U.S. 604, 606, 5 Sup.Ct. 296; Spalding v. Manasse, 131 U.S. 65, 9 Sup.Ct. 649. And where there has been a written waiver of the right to try by jury, it is equally well determined that there can be no inquiry upon writ of error into questions of fact,-- the review in such cases being limited to rulings of the court in the progress of the trial and, when there has been a special finding, to the determination of the sufficiency of the facts found to support the judgment. Distilling & Cattle Feeding Co. v. Gottschalk Co., 66 F. 609, 13 C.C.A. 618, and cases cited. 'The most appropriate evidence of a compliance with the statute is a copy of the stipulation in writing, filed with the clerk. But the existence...