Webb v. National Bank of Republic of Chicago

• Decision Date: 05 September 1906
• Docket Number: 2,368.
• Parties: WEBB et al. v. NATIONAL BANK OF REPUBLIC OF CHICAGO.
• Court: U.S. Court of Appeals — Eighth Circuit

146 F. 717

WEBB et al. v. NATIONAL BANK OF REPUBLIC OF CHICAGO.

No. 2,368.

United States Court of Appeals, Eighth Circuit.

September 5, 1906

(Syllabus by the Court.)

An exception 'to each, all, and every of said finding conclusion, and judgment,' after a judgment has been rendered on a special finding of facts made by the court at the close of a trial before it, is futile, in the absence of any objection, exception, or request for a declaration of law.

The question whether or not the facts found by the court sustain the judgment upon them arises on the face of the record, and no objection or exception is necessary to present it to an appellate court.

Where the finding by the court of the ultimate facts sustains the judgment and clearly shows that it is based on all the evidence and not on evidentiary or other facts it contains alone, and the latter facts are not necessarily inconsistent with the ultimate facts found, they present no ground for a reversal of the judgment.

Where the court has made a separate special finding of facts upon which the judgment has been rendered, the recital of facts in the opinion of the court constitutes no part of the finding and cannot be invoked to assail it.

Hiram W. Currey, for plaintiffs in error.

Frank Hagerman (Benjamin V. Becker, on the brief), for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit , and ADAMS, Circuit Judges.

SANBORN Circuit Judge.

This was an action brought by Webb and Wilson against the National Bank of the Republic for the conversion of 780 yearling steers. The issue was whether the defendant or the plaintiffs were the owners and entitled to the possession of the steers on June 4, 1901, when the conversion was alleged. A jury was waived and the cause was tried by the court which made and filed a special finding of facts, an opinion, and a judgment in favor of the defendant.

The plaintiffs assign many errors, but an examination of the record discloses the fact that the only exception they preserved was upon the entry of judgment and in these words 'To each, all, and every of said finding,' conclusion, and judgment the plaintiffs and each of them at the time except.'

In actions at law this is a court for the correction of errors of law of the court below and for this purpose alone. Exceptions to errors in the progress of the trial of a case are indispensable to their review by the appellate court. The purpose and office of an exception is to sharply call the attention of the trial court and of opposing counsel at the time to the specific ruling or finding challenged to the end that the court may at once correct it, if it is erroneous. An exception which does not give this notice of the specific error claimed utterly fails to perform its function and is futile. The exception here is of this nature. It neither suggest nor indicates which one of the several findings of fact or which of the numerous rulings of the court upon questions of law in the progress of the trial and decision of the case was then claimed to be wrong, or why this claim was made. This exception gave court and counsel no more notice of the alleged errors of which the plaintiffs now seek to avail themselves than their silence would have given. The court and opposing counsel would have been aware that the plaintiffs were of the opinion that the finding and the judgment against them were erroneous if no exception whatever had been taken, and the exception here under discussion gave them no more information. For this reason this exception presents nothing for the consideration of an appellate court, and the questions based upon it that have been discussed in the briefs and argument of counsel are beyond our reach.

No objection was made and no exception was taken to any ruling of the court during the progress of the trial. The bill of exceptions which appears in this record shows no request for any declaration of law or for any declaration that there was no substantial evidence to sustain a finding of facts in favor of the defendant or that there was none to sustain a finding of any of the special facts in issue (U.S. Fidelity & Guaranty Co. v. Commissioners of Woodson County (C.C.A.) 145 F. 144), and this court may not look beyond the bill of exceptions for such objections, exceptions, or declarations. Thus it appears that there is nothing in the record to indicate that any of the complaints of the rulings or findings founded upon this general exception were either called to the attention of the court below, or that it ever consciously ruled upon any of them. There can, therefore, be no error of the trial court to correct here, because none of the questions based upon this exception were ever consciously ruled by it.

It is conceded that an exception to each refusal to give each of several requests for instructions to a jury or for declarations of law in a trial by the court may be as effective as a separate exception to each refusal, because an exception of this nature calls the...