Searcy County v. Thompson

THAYER, Circuit Judge.

This case was before this court on a previous occasion, and is reported in 12 U. S. App. 618, 6 C. C. A. 674, and 57 Fed. 1030. After the case was remanded by this court for a new trial, Searcy county, the plaintiff in error, filed an amended answer, wherein it alleged, in substance, that the warrants sued upon were issued in pursuance of a fraudulent and unlawful agreement between the county and McCabe & G-reenhaw, who were the contractors for building a courthouse for the county, whereby the price for doing the work was fixed at a sum known to be three times in excess of its actual value, to cover a known depreciation in the value of county warrants that were to be issued and received in payment for building the courthouse. A stipulation was filed, waiving a jury, and the case was subsequently tried before the court — resulting in a judgment in favor of Thompson, who was the plaintiff, for the sum of $23,500. The bill of exceptions in the present record contains a statement of the substance of the testimony that was adduced at the trial. . It also shows that the trial court elected to make a general, rather than a special, finding, which finding is as follows:

“The case was then argued and submitted to the court, and the court found for the plaintiff, upon all of the warrants sued on and rendered judgment against the defendant for the sum of twenty-three thousand five hundred dollars and costs, from which judgment the defendant claimed an appeal; and time was allowed the defendant, for sixty days from this date, to prepare and file its bill of exceptions herein.”

No exceptions were taken in the course of the trial, either to the admission or exclusion of testimony. Neither did the defendant ask an instruction in the nature of a demurrer to the evidence,— that, on the proof offered, the plaintiff was not entitled to recover. Such being the condition of the record, we are confronted at the outset with the inquiry whether the record presents any question which this court can review.

Section 700 of the Revised Statutes, which was enacted on March 3, 1865 (13 Stat. 501), provides that:

“When an Issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to section six hundred and forty-nine, the rulings of the court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed by the supreme court upon a writ of error or upon appeal; and when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment.”

lu one of the earliest: cases involving a construction of this statute, Dirst v. Morris, 14 Wall. 484, 491, Mr. Justice Bradley, in delivering the opinion of the supreme court of the United States, said:

“But. as the law stands, if tile jury is waived, and the court chooses to find generally for one side or the other, the losing party has no redress, on error, except for the wrongful admission or rejection of evidence.”

In a subsequent case, in which a jury had been waived pursuant to the provisions of the aforesaid statute, the supreme court had occasion to consider whether it could review the action of the circuit court in refusing certain instructions that had been asked by the defendant. With reference to that question, the court said:

“Requests that the court would adopt certain conclusions of la.w were also presented by the defendants, in the nature of prayers for instruction, as in cases where the issues of fact are tried by a jury, which were refused by the circuit court, and the defendants also excepted to such refusals. None of these exceptions have respect to the rulings of the court in admitting or rejecting evidence, nor to any other ruling of the circuit court whicli can properly be denominated a ruling in the progress of the trial, as every one of rhe refusals excepted to appertain to some request made to affect or control the final conclusion of the court as to the plaintiffs right to recover. Such requests or prayers for instruction, in the opinion of the court, are not the proper subjects of exception in cases where a jury is waived, and the issues of fact are submitted to the determination of the court.” Insurance Co. v. Folsom, 18 Wall. 237, 253.

In the case of Cooper v. Omohundro, 19 Wall. 65, 69, which was also a case that had been tried by the coni’t without the intervention of a jury, it appeared that five instructions had been asked by the defendant which were refused by the circuit court, and the refusal of the same was assigned for error. One of these instructions was in the following form:

“(C) That, upon the whole case, judgment should be for the defendant.”

Concerning the alleged errors, Mr. Justice Clifford, in delivering the opinion of the supreme court, said:

“Beyond all doubt, the only effect of the exception to the refusal of the court to grant the fifth request, if the exception is admitted to be well taken, will be to require the court here to review the finding of the circuit court in a case ■where the finding is general, and where it is unaccompanied by any authorized statement of the facts, which it is plain this court cannot do, for the reasons given in the opinion of the court in the case of Insurance Co. v. Folsom, decided at the present term. Our decision in that case was, that in a case where Issues of fact are submitted to the circuit court, and the finding is general, nothing is open to review by the losing party, under a writ of error, except the rulings of the circuit court in the progress of the trial, and that the phrase, ‘rulings of the court in the progress of the trial,’ does not include the general finding of the circuit court, nor the conclusions of the circuit court embodied in such general finding, which certainly disposes of the exceptions to the refusals of the circuit court to decide and rule as requested in the first four prayers presented by the defendant, as it is clear that those exceptions seek to review certain conclusions of the circuit court which are necessarily embodied in the general finding of the circuit court.”

In the case of Martinton v. Fairbanks, 112 U. S. 670, 675, 676, 5 Sup. Ct. 321, the following statement is found with reference to the act of March 3, 1865, which is now under consideration. The court said:

“Prior to the enactment of the act of March 3, 1865 (now sections 649, .700, Rev. St. U. S.), it was held by this court that ‘when the case is submitted to the judge to find the facts, without the intervention of a jury, he acts as a referee by consent of the parties, and no bill of exceptions will lie to his reception or rejection of testimony nor to his judgment on the law,’ * * * and that ‘no exception can be taken where there is no jury, and where the question of law is decided in delivering the final judgment of the court.’ * * * Section 4 of the act of March 3, 1865, was passed to allow the parties, where, - a jury being waived, the case was tried by the court, a review of such rulings of the court in the progress of the trial as were excepted to at the time and duly presented by bill of exceptions, and also a review of the judgment of the court upon the question whether the facts specially found by the court were sufficient to support its judgment. In other respects the old law remained unchanged. In the present case the bill of exceptions presents no ruling of the court made in the progress of the trial, and there is no special finding of facts. The general finding is conclusive of the issues of fact against the plaintiff in error, and there is no question of law presented by the record of which we can take cognizance.”

Again, in Stanley v. Supervisors of Albany, 121 U. S. 535, 547, 7 Sup. Ct. 1234, it was said by Mr. Justice Field, in delivering the opinion of the supreme court, that:

“Where a case is tried by the court without a jury, its findings upon questions of fact are conclusive hére. It matters not how convincing the argument that upon the evidence the findings should have been different.”

It is also well settled that “a special finding of facts,” in the sense in which that phrase is used in the statute, is not a mere report of all the evidence adduced at the trial, but consists of a statement of the ultimate conclusions of the trial court upon issues of fact raised by the pleadings. Norris v. Jackson, 9 Wall. 125; Burr v. Des Moines Co., 1 Wall. 99, 102.

The decisions in Insurance Co. v. Folsom and Cooper v. Omohundro, supra, were cited and approved in the late case of Lehnen v. Dickson, 148 U. S. 71, 73, 13 Sup. Ct. 481; and, so far as we are aware, the doctrine enunciated in those cases has never been crit-icised or overruled by the supreme court It is true, however, as has- been suggested, thát in the case of Clement v. Insurance Co., 7 Blatchf. 51, Fed. Cas. No. 2,882, Judge Blatchford, while circuit judge, gave expression to some views which seem to be at variance with the ruling of the supreme court in the cases heretofore cited. But it is to be noted that the case of Clement v. Insurance Co. was decided by Judge Blatclrford some two years prior to the decisions in Dirst v. Morris and in Insurance Co. v. Folsom, so that at the present time the decision in question cannot be regarded as authoritative. It becomes necessary, therefore, to apply the doctrine above stated to the case at bar. The plaintiff in error asked two instructions which Avere refused, and, on account thereof,, exceptions were saved to the action of the circuit court. These instructions were as follows:

“(1) The plaintiff is entitled to recover for the building of this courthouse only the legal, ordinary, and customary price for such a building, estimating a dollar in county warrants at par with lawful currency of the United States, if at the time of letting the contract the contractor and the county judge understood that the price bid was in excess of the real cost of the building, and the contract was let Avith the understanding that county warrants were and would be at a discount, and the price fixed in the contract was put larger than the customary price for such work in order to enable the contractor to dispose of the warrants at a discount, and from the proceeds obtain enough to realize the actual value of such a contract. * * * (3) Upon the whole case, the judgment should be for the plaintiff for the amount only which such a courthouse Avas Avorth to build, at customary prices, in cash, deducting therefrom the amount already paid by the county for such building.”

It will be observed that the last of these instructions is the counterpart of an instruction that was asked and refused in the case of Cooper v. Omohundro, supra, with reference to which the supreme court in that case remarked that the only effect of the exception to the refusal of the request, if the exception was well taken, would be to require the supreme court to review the general finding of the circuit court, which it was plain it could not do in the absence of any special finding. What was thus said is strictly applicable to the case in hand. Instruction No. 3, above quoted, having been asked by the plaint#! below, is not, in the nature of a demurrer to the evidence, and cannot he treated as such. It is an instruction which would obviously compel this court to pass upon every contested issue of law and fact disclosed by the record, if we concede that the action of the circuit court in refusing the request is a matter that can be reviewed here. We conclude, therefore, that the alleged error in refusing the request is not subject to consideration by this court.

With reference to the first instruction above quoted, it is sufficient to say that the action of the circuit court in refusing that request cannot be reviewed here, for the following reasons: That instruction was evidently offered for the purpose of affecting or controlling the final conclusion of the circuit court, embodied in its general finding, as to the plaintiff’s right to recover,.and as was said in the case of Insurance Co. v. Folsom, with reference to similar instructions, “such requests or prayers for instruction * * * are not the proper subjects of exception in cases where a jury is waived, and the issues of fact are submitted to the determination of the court.” Furthermore, this request was founded upon a hypothetical state of facts, which may or may not have been established by the testimony. It is impossible for an appellate court, which has no power to review the testimony, to say that an error was committed in the refusal of the instruction, unless the record shows that a state of facts was found to exist which rendered such an instruction applicable. It may have been that the circuit court found and determined that the evidence did not establish the supposed facts recited in the instruction, and that the case did not require a decision upon the question of law which was presented by the instruction. If that was the view entertained, this court cannot say that an error was- committed in refusing the request; for by waiving a jury the trial judge became invested with an exclusive power to ascertain the facts, and we cannot interfere, either directly or indirectly, with his action in that behalf. In all cases where a jury is waived, and the finding is general, the construction.that has heretofore been placed on the act of March 8, 1865, will necessarily preclude a party from assigning error on account of the refusal of an instruction which is asked with, reference to some supposed phase of the testimony, and is merely calculated to affect or to control the final conclusion of the court as to the party’s right to recover. In this respect the practice in the federal court differs, no doubt, from the practice which obtains in many, if not all, of the state courts, but at this day it is a practice which is too well settled by judicial decisions to be disregarded. To obviate the difficulty which is encountered in the present case, and has heretofore been encountered in other cases of a like character, the parties to suits at law pending in the federal courts, which are to be tried without the intervention of a jury, should make a seasonable application to the trial court to find the facts specially. Though the circuit courts of the United States are not bound by the act of March 3, 1865, to make a special finding of the facts when a jury is waived, yet we apprehend that it will rarely happen that a trial judge will refuse to make a special finding, when requested to do so, especially if counsel will take the trouble to prepare and submit such a finding for the inspection and approval of the trial judge. We can conceive of no reason that will be likely to induce trial judges to refuse to sign a special finding when it conforms to their view of the facts. When the facts of a case are found specially, and the finding is duly incorporated into the record by a bill of exceptions, it is made the duty of a federal appellate court, by the act of March 3, 1865, to determine whether the facts found, are sufficient to support the judgment; and it will generally happen, we think, that the right to thus determine whether the special finding is adequate to support the judgment will enable an appellate court, where the special finding is properly prepared, to consider and to decide all of those questions of law pertinent to the case which are ordinarily presented, or attempted to be presented, in the form of instructions. The result is that, because the présent record fails to disclose any error committed during the course of the trial which this court can review, the judgment of the circuit court must be, and it is hereby, affirmed.