United States v. Smith

• Decision Date: 11 April 1930
• Docket Number: No. 2399,2400.,2399
• Citation: 39 F.2d 851
• Parties: UNITED STATES v. SMITH. SAME v. BROWN et al.
• Court: U.S. Court of Appeals — First Circuit

39 F.2d 851 (1930)

UNITED STATES v. SMITH.

SAME v. BROWN et al.

Nos. 2399, 2400.

Circuit Court of Appeals, First Circuit.

April 11, 1930.

Judson S. Bohannan, Assistant to Solicitor, Department of Agriculture, of Washington, D. C. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., and Elton L. Marshall, Sol., Department of Agriculture, of Washington, D. C., on the brief), for the United States.

Lothrop Withington, of Boston, Mass. (Sherman L. Whipple and Claude B. Cross, both of Boston, Mass., on the brief), for appellees.

Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.

WILSON, Circuit Judge.

These are actions at law to recover what are termed excess gross profits under certain regulations issued by the so-called Wool Division of the War Industries Board under date of May 21, 1918, with the purpose of controlling the collection and distribution of the wool clip of that year.

After the court below had overruled the defendant's demurrer in each case and permitted the defendant to answer to the merits, by stipulation of the parties in writing waiving a jury under section 649, Rev. St. (section 773, title 28, USCA), both cases were withdrawn from the jury and tried before the court. On motion, the court below ordered judgment for the defendant in each case.

While the cases were heard separately below, they were argued together before this court, and, as they involve similar questions, may be disposed of in one opinion.

At the outset we are met with the contention by the defendants that upon the record in each case no question of law is raised for review in this court.

In the case against Smith, while the government requested certain rulings of law, the record does not show that they were refused by the trial judge, except as it may be implied in his opinion. According to the record, the only exception taken was an exception to the order of judgment for the defendant.

In the case against Brown et al. the government made requests for both rulings of law and findings of fact, and the bill of exceptions in that case states that the several requests for rulings of law and findings of fact were refused and exceptions taken. The exceptions to the findings of fact, however, have been waived — probably for the reason that whether the court on request shall make special finding of facts is discretionary and its refusal is not reviewable. Bank of Waterproof v. Fidelity & Deposit Co. (C. C. A.) 299 F. 478, 480. The plaintiff in the Brown case also assigned as error that "the court erred to the prejudice of plaintiff in rendering judgment in favor of defendant and against the plaintiff upon the facts stipulated herein."

Although the Act of March 4, 1865, now sections 649 and 700 of the Revised Statutes (28 USCA §§ 773, 875), was enacted more than sixty-five years ago, and has frequently been the subject of construction by the courts, "nevertheless, it has been, and is yet, the source of much uncertainty at the bar, and some conflict in the decisions, both as to what questions are open for review and what procedure is necessary to secure such review in an appellate federal court." Bank of Waterproof v. Fidelity & Deposit Co. (C. C. A.) 299 F. 478, 480.

That the uncertainty and conflict in the decisions are not overstated in the above case will be disclosed by an examination of the decisions from Norris v. Jackson, 9 Wall. 125, 19 L. Ed. 608; Dirst v. Morris, 14 Wall. 484, 20 L. Ed. 722; Mercantile Ins. Co. v. Folsom, 18 Wall. 237, 21 L. Ed. 827; Cooper v. Omohundro, 19 Wall. 65, 22 L. Ed. 47; and Searcy County v. Thompson (C. C. A.) 66 F. 92; to Bank of Waterproof v. Fidelity & Deposit Co. (C. C. A.) 299 F. 478, 480; Newlands v. Calaveras Min. & Mill Co. (C. C. A.) 28 F.(2d) 89; Talent v. United States (C. C. A.) 32 F.(2d) 630; Law v. United States, 266 U. S. 494, 45 S. Ct. 175, 69 L. Ed. 401; and Fleischmann Co. v. United States, 270 U. S. 349, 48 S. Ct. 284, 70 L. Ed. 624.

Prior to the act of 1865 (13 Stat. 500), if a case was submitted to the court without a jury, a finding of the facts, whether general or special, was not a judicial act. The court in such a case acted in the capacity of referee or arbitrator, and of its findings of fact or rulings of law there was no review in the appellate courts. Campbell et al. v. Boyreau, 21 How. 223, 226, 16 L. Ed. 96; Campbell v. United States, 224 U. S. 99, 105, 32 S. Ct. 398, 56 L. Ed. 684; Bank of Waterproof v. Fidelity & Deposit Co. (C. C. A.) 299 F. 478, 479.

Where, however, there was a special finding of facts by a jury, or the "ultimate facts" were agreed upon by the parties and made a part of the record, and all that remained to determine the rights of the parties was a question of law for the court, the judgment of the court could be reviewed on a writ of error, though no exceptions were taken, since the error, if any, appeared on the record. Suydam v. Williamson, 20 How. 427, 434, 15 L. Ed. 978; Insurance Co. v. Boon, 95 U. S. 117, 125, 24 L. Ed. 395; Allen v. St. Louis Bank, 120 U. S. 20, 30, 7 S. Ct. 460, 30 L. Ed. 573; Seeberger v. Schlesinger, 152 U. S. 581, 586, 14 S. Ct. 729, 38 L. Ed. 560. "The Act of 1865 was not intended to interfere with this practice." Supervisors v. Kennicott, 103 U. S. 554, 556, 26 L. Ed. 486.

Under section 649, Rev. St. (28 USCA § 773) authorizing the waiving of jury trials, the findings of fact by the court have the same effect as a verdict of jury. If, therefore, in a jury waived case under this section the finding of facts is general, no question of law is raised thereby, and the only questions of law in such a case that can be reviewed are on rulings made in the progress of the trial, as is provided in section 700, Rev. St. (28 USCA § 875). If, however, the court in a jury waived case makes special findings of the ultimate facts, or they are agreed upon by both parties, and thus have the effect of special findings, Supervisors v. Kennicott, supra, then as in the case of special findings by a jury, the sufficiency of the facts to support the judgment was formerly reviewable on a writ of error, and now is reviewable on appeal. Streeter v. Sanitary Dis. of Chicago (C. C. A.) 133 F. 124, 127; Fleischmann Co. v. United States, 270 U. S. 349, 356, 46 S. Ct. 284, 70 L. Ed. 624.

Out of the plethora of cases construing the act of 1865, the following rules applicable to jury waived cases may be deduced, and on which the decisions are substantially in accord.

If the findings of the court are general, only such rulings as are made in the progress of the trial are reviewable. A trial is still in progress within the meaning of the statute until the case is submitted to the trial judge for final determination. No exception lies to a final judgment based on general finding of facts. Wilson v. Merchants' Loan & Trust Co., 183 U. S. 121, 22 S. Ct. 55, 46 L. Ed. 113; United States Fidelity & G. Co. v. Com'rs (C. C. A.) 145 F. 144, 151.

If, however, the ultimate facts are agreed upon by the parties, or the trial judge makes special findings of all the ultimate facts, so that the rights of the parties become purely a question of law, the final conclusion of the court is reviewable, at least on exceptions to a refusal of a motion for a judgment by the losing party. Bank of Waterproof v. Fidelity & Deposit Co., supra; St. Louis v. Western Union Tel. Co., 148 U. S. 92, 13 S. Ct. 485, 37 L. Ed. 380; Fleischmann Co. v. United States, supra.

If the parties stipulate as to the ultimate facts, it in effect amounts to a special finding of facts by a jury (Supervisors v. Kennicott, supra), and whether the jury is waived under section 649, Rev. St. (28 USCA § 773) or the case is merely withdrawn from the jury and submitted to the court without compliance with that section, the ruling of the trial judge in ordering judgment for either party, though no exception thereto be taken by the losing party, is reviewable, formerly on writ of error, and now on appeal. Suydam v. Williamson, supra; Seeberger v. Schlesinger, supra.

It is difficult to lay down a rule, however, that will exactly prescribe the boundaries within which the "ultimate facts" in every case are confined. They are described in Universal Oil Products v. Skelly Oil Co. (D. C.) 12 F.(2d) 271, 272, as "found in that vaguely defined field lying between the evidential facts on the one side and the primary issue or conclusion of law on the other." It will depend on the issue, but in general they include all those facts necessary to be found in a given case in order that the determination of the right of the parties shall become a pure question of law. Supervisors of Wayne County v. Kennicott, supra; Raimond v. Terrebonne Parish, 132 U. S. 192, 194, 10 S. Ct. 57, 33 L. Ed. 309; Grayson v. Lynch, 163 U. S. 468, 472, 16 S. Ct. 1064, 41 L. Ed. 230.

If an agreed statement of facts or a special finding by the trial court leaves any fact, which is necessary to establish the rights of the parties, to be determined by the court from conflicting evidence, or even from inferences to be drawn from admitted facts or undisputed testimony — unless, perchance, the inference is an inevitable conclusion from the undisputed testimony or from the facts so agreed upon or found — no issue of law is raised on such an imperfect statement or special finding. The final conclusion of the trial court in such case would not be reviewable in the appellate courts either on a writ of error or on appeal upon exceptions to the judgment. Wilson v. Merchants' Loan & Trust Co., supra. It is unnecessary to discuss the other questions raised by counsel involving the jurisdiction of this court.

In the case against Smith there were no rulings during the progress of the trial, and an exception only to the order of judgment. It is obvious, therefore, that in this case, there being no special findings of fact, unless the stipulation of the parties admits all the ultimate facts, the finding of facts by the trial court must be...