171 F. 76 | 8th Cir. | 1909
This action, to recover the amount of a tax and accrued penalty paid by a manufacturer of oleomargarine under protest, from the collector of internal revenue, was submitted for final judgment to the trial court, a jury having been duly waived, upon proof taken by both sides on the issues joined. At the close of plaintiff’s case the collector moved for judgment in his favor and saved an exception to an adverse ruling on that motion. He then introduced evidence in his own favor. By doing so he waived the exception taken to the action of the court in denying his motion for a judgment. Barnard v. Randle, 49 C. C. A. 177, 110 Fed. 906. He closed his case without again moving for judgment in his favor, and submitted the same to the court for a general finding according to the preponderance of proof, and such finding only was made. No exceptions were preserved to any rulings of the court made during the progress of the trial. On such a record no question of law is presented for our consideration. Keeley v. Ophir Hill Consolidated Mining Co. (C. C. A.) 169 Fed. 601, and cases cited.
The judgment of the Circuit Court is accordingly affirmed.