Walker v. Miller

• Decision Date: 29 January 1894
• Docket Number: 303.
• Parties: WALKER et al. v. MILLER.
• Court: U.S. Court of Appeals — Eighth Circuit

59 F. 869

WALKER et al. v. MILLER.

No. 303.

United States Court of Appeals, Eighth Circuit.

January 29, 1894

Henry L. Call, (David Overmyer, on the brief,) for plaintiffs in error.

Henry Keeler, for defendant in error.

Before CALDWELL, Circuit Judge, and THAYER, District Judge.

THAYER District Judge.

This writ of error was brought mainly for the purpose of presenting the question whether a business corporation, when it becomes insolvent, thereafter holds all of its property in trust for equal distribution among its creditors, and is deprived of the common-law power of preferring creditors which individuals ordinarily possess. But the record fails to present the question in such form that it can properly be determined. The case was tried before the circuit court on a written stipulation waiving a jury, and there was a special finding of facts. No exceptions were taken to the admission or exclusion of testimony, which have been argued in this court, and no instructions were either asked, given, or refused. The record contains the pleadings, the special findings, the judgment, and a bill of exceptions showing the testimony upon which the findings of fact were predicated but, as no exceptions were saved by the bill of exceptions which we are asked to review, it might as well have been omitted from the record. In the federal appellate tribunals it is well settled that the only question presented for consideration by a record like the one now in hand is whether the pleadings and the special findings of fact are adequate to support the judgment. Neither the supreme court nor the court of appeals will undertake to determine, in a case like the one at bar, whether the special findings are supported by the testimony contained in the bill of exceptions, for to do so would be simply to review the decision of the trial court on questions of fact, rather than of law. By filing a written stipulation waiving a jury, the parties to the litigation may impose upon the circuit court the duty of making a general or special finding on questions of fact, but they cannot impose upon an appellate court a like duty. The finding of the trial court, whether it be general or special, has the same conclusive effect when the record is removed by writ of error to an appellate tribunal as a similar finding by a jury; and exceptions must be saved and presented in the same manner, either by objections to the introduction or to the exclusion of testimony, or by tendering declarations of law and obtaining a ruling thereon. These several propositions are well established by repeated adjudications. Insurance Co. v. Folsom, 18 Wall. 237, 249; Cooper v. Omohundro, 19 Wall. 65, 69; Norris v. Jackson, 9 Wall. 125, 127; Schuchardt v. Allans, 1 Wall. 359; Kearney v. Case, 12 Wall. 275; Burr v. Navigation Co., 1 Wall. 99; Lehnen v. Dickson, 148 U.S. 71, 13 S.Ct. 481; Martinton v. Fairbanks, 112 U.S. 670, 5 S.Ct. 321; Bank v. Farwell, 6 C. C. A. 24, 56 F. 570.

The suit at bar was an action on the official bond of the United States marshal for the district of Kansas, against him and his sureties, for a wrongful levy on the property of Charles R. Miller under a writ of attachment issued by the United States circuit court for the district of Kansas against the Alma Coal-Mining Company. The property in question had been sold by the coal company, prior to the levy, to one J. H Bailey, and Bailey had sold the same to Charles R. Miller, the defendant in error, who was in possession of the same when the levy was made. The circuit court found, in substance, that the coal company was...