Wm. Edwards Co. v. La Dow

• Decision Date: 07 March 1916
• Docket Number: 2802,2806.,2804
• Citation: 230 F. 378
• Parties: WM. EDWARDS CO. v. LA DOW. TRACY & AVERY CO. v. SAME. ALBERT F. REMY CO. v. SAME.
• Court: U.S. Court of Appeals — Sixth Circuit

230 F. 378

WM. EDWARDS CO. v. LA DOW. TRACY & AVERY CO. v. SAME.

ALBERT F. REMY CO. v. SAME.

Nos. 2802, 2804, 2806.

United States Court of Appeals, Sixth Circuit.

March 7, 1916

[Copyrighted Material Omitted]

Klein &amp Harris, of Cleveland, Ohio, and Mabee & Anderson, of Shelby Ohio, for plaintiff in error Wm. Edwards Co.

John H. Coss, of Mansfield, Ohio, and Mabee & Anderson, of Shelby, Ohio, for plaintiff in error Tracy & Avery Co.

C. H. Huston, of Mansfield, Ohio, and Mabee & Anderson, of Shelby, Ohio, for plaintiff in error Albert F. Remy Co.

Louis D. Barr and Van C. Cook, both of Mansfield, Ohio, for defendant in error.

Before KNAPPEN and DENISON, Circuit Judges, and SATER, District Judge.

KNAPPEN Circuit Judge.

These actions are separate suits at law brought each against one of the plaintiffs in error to recover alleged preferential cash payments. The court referred the causes to a master commissioner to take testimony and report. The commissioner (who heard the cases together) reported in favor of the plaintiffs in error. Upon exceptions taken by the trustee, the district court reversed the master commissioner and entered judgment in favor of the trustee against the respective plaintiffs in error. The cases are brought here both by writ of error and by appeal, and have been heard together. As the causes are clearly at law, and were properly so brought (Stearns Salt & Lumber Co. v. Hammond (C.C.A. 6) 217 F. 559, 133 C.C.A. 411), review can be had only upon writ of error. The appeals are accordingly dismissed.

At the threshold we are met by the contention of plaintiffs in error that the court below had no jurisdiction to refer the cases to the master commissioner, or to take further proceedings therein, for the reason that the order of reference was made without their consent and without waiver of trial by jury.

Defendants had an undoubted right to have the suits against them tried by jury, and unless such right has been either expressly or impliedly waived the reference of the cases to the master was unauthorized; for the order of reference to the master does not show affirmatively that either of the defendants was present when the order was made or expressly assented thereto, and the record itself throws no further light on the subject. We therefore think we should assume that such presence was not had, or, if had, assent not given either expressly or by implication.

Upon the hearing before the master the Edwards Company expressly objected to the consideration of the cause by the master, and insisted 'upon its rights to have the cause tried by a jury in the manner usual in such cases'; and the judgment entry in the District Court, upon the hearing of the trustee's exceptions to the master's report, recites defendant's appearance 'by counsel only to protest the jurisdiction of the court, which said protest the court overruled.'

In our opinion the Edwards Company not only seasonably asserted its right to a jury trial, but, so far as the record shows, has done nothing amounting to a waiver; for we think it clear that it waived no rights by failing to take formal exceptions to the order of reference previously made; and it participated in the proceedings before the master only under protest, and upon the hearing before the court apparently not at all. We are therefore constrained to reverse the judgment in No. 2802, and to remand the record for further proceedings.

As to the other defendants the situation is materially different. Both appeared before the master and participated in the trial without protest or objection of any kind to his jurisdiction. They also appeared by counsel before the District Court on the hearing of the trustee's exceptions to the master's report and participated therein. So far as the record shows, neither made any objection or protest of any kind to the reference and proceedings thereunder until after the reversal of the master's judgment by the court, and the entry of judgment accordingly.

The ultimate questions are, first, whether such appearance and participation without objection in the proceedings both before the master and the court amounted to a waiver of the right to trial by jury under section 649 of the Revised Statutes (Comp. St. 1913, Sec. 1587), which authorizes a trial without a jury 'whenever the parties, or their attorneys of record file with the clerk a stipulation in writing waiving a jury'; and, second, the extent to which the proceedings are reviewable. The provisions of this section are by section 291 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1167 (Comp. St. 1913, Sec. 1268)) made applicable to the District Court. Eastern Oil Co. v. Holcomb (C.C.A. 8) 212 F. 126, 128, 128 C.C.A. 642; Nashville Interurban Ry. Co. v. Barnum (C.C.A. 2) 212 F. 634, 638, 129 C.C.A. 170; Philadelphia Casualty Co. v. Fechheimer (C.C.A. 6) 220 F. 401, 405, 136 C.C.A. 25.

The order referring the causes to the master commissioner is printed in the margin. ^[1]

The meaning and effect of this order are important. We think it contemplated a finding of the master upon the facts and the law, with the right reserved to the parties to file exceptions thereto, and with power in the court to review and reconsider on such exceptions all the findings of law and of fact made by the master, and for this purpose to examine and weigh the evidence reported to the court by the master, and to enter judgment according to the result of such reexamination. Shipman v. Ohio Coal Exchange (C.C.A. 6) 70 F. 652, 654, 17 C.C.A. 313. Notwithstanding section 649 provides for waiving a trial by jury only by stipulation in writing, it would have been entirely competent for the parties to consent to be bound by the order of reference made by oral agreement in open court. Dundee Mortgage, etc., Co. v. Hughes, 124 U.S. 157, 160, 8 Sup.Ct. 377, 31 L.Ed. 357. The language of the section relating to the filing of stipulation with the clerk of the court was designed merely to enable the parties to make agreements in vacation, and to prevent either party demanding a jury unexpectedly at the trial. Kearney v. Case, 12 Wall. 275, 283, 284, 20 L.Ed. 395. It is the general and well-settled rule that parties are presumed to have waived a jury, even in the absence of written stipulation, whenever it appears that they were present at the trial in person or by counsel and made no demand for a jury (Kearney v. Case, supra; Gilman v. Ill. & Miss. Tel. Co., 91 U.S. 603, 614, 23 L.Ed. 405; United States v. Harris, 106 U.S. 629, 635, 1 Sup.Ct. 601, 27 L.Ed. 900; Perego v. Dodge, 163 U.S. 160, 166, 16 Sup.Ct. 971, 41 L.Ed. 113); for section 566 of the Revised Statutes (Comp. St. 1913, Sec. 1583), requiring that actions at law in the District Courts be tried by jury, has no application to the District Courts as now organized.

If, as we have seen, it would have been competent for plaintiffs in error to have waived the right to trial by jury, by consenting in open court to the original making of the order of reference, it was equally competent for them to so consent by attending the proceedings under the reference, both before the master and the district court, without objection or protest. The very fact that the Edwards Company made protest before both tribunals emphasizes the presumption of consent and acquiescence from the silence of the other two plaintiffs in error, presumably present when such protest was made. We think parties should not be permitted to play fast and loose with the court, to speculate upon the chances of a...