United States v. Nugent

• Decision Date: 16 December 1938
• Docket Number: No. 7510.,7510.
• Citation: 100 F.2d 215
• Parties: UNITED STATES v. NUGENT.
• Court: U.S. Court of Appeals — Sixth Circuit

100 F.2d 215 (1938)

UNITED STATES v. NUGENT.

No. 7510.

Circuit Court of Appeals, Sixth Circuit.

December 16, 1938.

W. S. Ward, of Washington, D. C. (Bunk Gardner and Eli H. Brown, III, both of Louisville, Ky., on the brief), for appellant.

Wilbur Fields, of Louisville, Ky. (Ernest Woodward, Wilbur Fields, and Woodward, Dawson & Hobson, all of Louisville, Ky., on the brief), for appellee.

Before HICKS, SIMONS, and ALLEN, Circuit Judges.

ALLEN, Circuit Judge.

This is an appeal from a judgment awarding damages in an action brought under the Tucker Act, Title 28, § 41(20), U.S.C., 28 U.S.C.A. § 41(20), for the alleged appropriation by the United States of private property in consequence of the erosion and washing away of approximately 35 acres of appellee's land, caused by the construction of Lock and Dam No. 41 and a dike a short distance below in the Ohio River. Appellant contends that the record presents a case of consequential damage, not amounting to an appropriation. This question will not be considered, as the case must be remanded for rehearing owing to prejudicial error in the conduct of the proceedings below.

The evidence was heard on October 6, 1934, by a judge of the District Court who resigned from office on July 1, 1935, without having made any findings of fact or conclusions of law, and without disposing of the case. Another judge of the District Court, acting under a general designation, made findings of fact and conclusions of law based upon a stenographer's report of the testimony and entered judgment thereon without hearing the witnesses. It is not shown that the Government consented to the use of this transcript by the judge who entered the judgment, but we deem this fact to be immaterial.

The question is whether a judgment entered under the Tucker Act is valid where the evidence was heard by one judge and the findings of fact, conclusions of law, and decision, were made by a different judge. The Tucker Act gives the District Court jurisdiction over suits against the United States. The particular statute relating to such suits and controlling here is § 764, Title 28, U.S.C., 28 U.S.C.A. § 764, which reads:

"It shall be the duty of the court to cause a written opinion to be filed in the cause, setting forth the specific findings by the court of the facts therein and the conclusions of the court upon all questions of law involved in the case, and to render judgment thereon. * * *"

It is familiar doctrine that the United States cannot be sued without its consent (Cunningham v. Macon & Brunswick Rd. Co., 109 U.S. 446, 3 S.Ct. 292, 609, 27 L.Ed. 992), and that it therefore may prescribe the conditions under which it will be sued. Schwab v. United States, 7 Cir., 17 F.2d 34. The United States may prescribe the manner in which it will be sued, and the requirements laid down for such proceedings are mandatory.

We conclude that there is a fatal defect in the proceedings below, for the reason that (1) under this statute a judge is not authorized to make findings of fact and conclusions of law based on testimony which he has not heard, and (2) the requirement that an opinion be entered was not complied with.

The question whether such a case can properly be tried by two different judges, one hearing the testimony and the other making ultimate findings and conclusions, is of extreme importance, as the findings of the trial court are conclusive and have the effect of a jury verdict unless manifest error exists. Cf. United States v. Berdan Firearms Mfg. Co., 156 U.S. 552, 15 S.Ct. 420, 39 L.Ed. 530; Bassett v. United States, 9 Wall. 38, 19 L.Ed. 548; Stanley v. Board of Supervisors of Albany, 121 U.S. 535, 547, 7 S.Ct. 1234, 30 L. Ed. 1000; Lehnen v. Dickson, 148 U.S. 71, 73, 13 S.Ct. 481, 37 L.Ed. 373; State Farm Mutual Automobile Ins. Co. v. Coughran, 303 U.S. 485, 487, 58 S.Ct. 670, 82 L.Ed. 970. This rule is based largely upon the superior opportunity which the trier of the facts has to ascertain the truth, due to personal observation of the witnesses. Westchester Fire Ins. Co. v. Bringle, 6 Cir., 86 F.2d 262, 264; In re Great Lakes Transit Corp., Ltd., 6 Cir., 81 F.2d 441, 443; The William A. Paine, 6 Cir., 39 F. 2d 586, 588; Brush-Moore Newspapers, Inc., v. Commissioner, 6 Cir., 95 F.2d 900, 902. The trial judge has the right and duty to observe the bearing and demeanor of the witnesses, and where the evidence is...