United States v. Cleage

• Decision Date: 12 March 1908
• Docket Number: 2,560.
• Citation: 161 F. 85
• Parties: UNITED STATES v. CLEAGE.
• Court: U.S. Court of Appeals — Eighth Circuit

161 F. 85

UNITED STATES v. CLEAGE.

No. 2,560.

United States Court of Appeals, Eighth Circuit.

March 12, 1908

Syllabus by the Court

Where a cause in a District Court, which is triable by jury under Rev. St. Sec. 566 (U.S. Comp. St. 1901, p. 461), is by consent of the parties tried to the court without a jury, no question of fact or law decided upon or in connection with the trial is subject to re-examination in an appellate court.

Rev St. Secs. 649, 700 (U.S. Comp. St. 1901, pp. 525, 570), which provide for waiving a jury and for the review of judgments rendered in causes where there is such a waiver, relate exclusively to trials in the Circuit Courts, and there are no similar provisions in respect of trials in the District Courts.

Where in a cause otherwise triable by jury, the parties agree upon a statement of the ultimate facts, and not the evidence of them, and the case is then submitted to the court without a jury for its decision of the questions of law arising upon the facts so stated, the judgment may be reviewed upon a writ of error; and this, because there the facts are not determined upon a trial by the court, but by the agreed statement, which is spread at large upon the record, as a part of it, as would be a special verdict.

When the trial is to the court, under Rev. St. Sec. 649 (U.S Comp. St. 1901, p. 525), the finding may be either general or special, but not both, and, where a general finding is made and judgment is rendered thereon, it cannot be regarded as superseded by a supposed special finding, which was not entered of record, is only found in the bill of exceptions, and does not purport to qualify or take the place of the general finding.

Edward P. Johnson, Asst. U.S. Atty. (Henry W. Blodgett, U.S. Atty., on the brief).

Before VAN DEVANTER and ADAMS, Circuit Judges, and RINER, District judge.

VAN DEVANTER, Circuit Judge.

By an action begun in the District Court the United States sought to recover from Thomas Cleage certain taxes alleged to have accrued under Schedule A of the war revenue acts of June 13 1898 (30 Stat. 448, 458, c. 448) and March 2, 1901 (31 Stat. 938, 942, c. 806 (U.S. Comp. St. 1901, pp. 2286, 2300)). The petition was in two counts, and its allegations were all put in issue by the answer. By consent of the parties the trial was to the court without a jury. It resulted in a general finding for the defendant on the first count, and for the plaintiff on the second, and judgment was entered accordingly. Afterwards a bill of exceptions was allowed and signed, setting forth all the testimony and other evidence, and also what is termed a special finding of the facts. No order was made vacating the general finding or substituting the special one in its place. The case is here upon a writ of error sued out by the plaintiff with the purpose of securing a re-examination of the questions of fact relating to the first count and of certain questions of law said to arise upon so much of the special finding as relates to that count. None of these questions, however, is open to consideration by us.

Save in certain excepted causes, of which this is not one, section 566 of the Revised Statutes (U.S. Comp. St. 1901, p. 461) prescribes that the trial of issues of fact in the district courts shall be by jury; and, when this mode of trial is waived in those courts, in a cause not of the excepted class, there is no provision of law for the re-examination in an appellate court of any question of fact or law decided upon or in connection with the trial. In these respects the law applicable to the district courts and to the review of their judgments is to-day precisely the same as was the law applicable to the Circuit Courts and to the review of their judgments before the enactment of the statute now embodied in sections 649 and 700 of the Revised Statutes (U.S. Comp. St. 1901, pp.. 525, 570). Prior to that statute, the Supreme Court held in Campbell v. Boyreau, 21 How. 223, 16 L.Ed. 96, a case tried in a Circuit Court and otherwise much like this, that none of the questions sought to be presented, whether of fact or law, could be re-examined upon a writ of error, and, to show the grounds upon which the decision proceeded, it was said:

'Indeed, under the acts of Congress establishing and organizing the courts of the United States, it is clear that the decision could not be otherwise; for, so far as questions of law are concerned, they are regulated in their modes of proceeding according to the rules and principles of the common law, with the single exception of the courts in the state of Louisiana, of which we shall presently speak. And by the established and familiar rules and principles which govern common-law proceedings no question of the law can be reviewed and re-examined in an appellate court upon writ of error (except only where it arises upon the process, pleadings, or judgment, in the cause), unless the facts are found by a jury by a general or special verdict, or are admitted by the parties, upon a case stated in the nature of a special verdict stating the facts, and referring the questions of law to the court.

'The finding of issues in fact by the court upon the evidence is altogether unknown to a common-law court, and cannot be recognized as a judicial act. Such questions are exclusively within the province of the jury; and if, by agreement of parties, the questions of fact in dispute are submitted for decision to the judge upon the evidence, he does not exercise judicial authority in deciding, but acts rather in the character of an arbitrator. And this court, therefore, cannot regard the

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