3 Dill. 101 | U.S. Circuit Court for the District of Eastern Missouri | 1874
This was an action of law tried by consent by the court upon testimony adduced by both parties, and which is embodied at length in the bill of exceptions. The facts, so far from being admitted by the parties in the court below, were disputed. After the trial was concluded the court rendered a general judgment for defendant, and accompanied it with a written opinion stating therein its view of the facts and the law thereon arising. The parties stipulated in the court below that the written opinion of the judge might be read in this court on the writ of error, to show the finding of facts by the district comet and its rulings thereon. This was probably done under the supposition that the act of March 3, 1805 (13 Stat. 501, § 4), applied to the district court as well as to the circuit court of the United States. Such however, is not the case, which, as it is a very useful enactment, is much to be regretted. The purpose and effect of this statute plainly appear in opinions of the supreme court in the cases below cited. Norris v. Jackson, 9 Wall. [76 U. S.] 125; Louisiana Mut. Ins. Co. v. Tweed, 7 Wall. [74 U. S.] 44; Flanders v. Tweed, 9 Wall. [76 U. S.] 425; Phoenix Ins. Co. v. Copelin, Id. 461; Coddington v. Richardson, 10 Wall. [77 U. S.] 516. It follows that rulings and judgments of a district court in actions at law can only be reexamined and revised by the circuit court on error, in the mode which obtained before the statute of March 3, 1805, and that mode is so well settled by the supreme court of the United States, that it is needful only to refer to a few of the numerous cases on this subject. Guild v. Frontin, 18 How. [59 U. S.] 135; Graham v. Bayne, Id. 60; Flanders v. Tweed, 9 Wall. [76 U. S.] 425; Campbell v. Boyreau, 21 How. [62 U. S.] 223.
In the case last cited the chief justice states the doctrine of the court and the grounds upon which it rests. He says: “By the established and familiar rules and principles which govern common law proceedings, no question of law can be revised and re-examined in an appellate court upon writ of error (except, only where it arises upon the process, pleadings, or judgment in the case), unless the facts are found by a jury by a general or special verdict, or are admitted by the parties upon a case stated in the nature of a special verdict stating the facts and referring the questions of law to the court. The finding of issues of fact upon the evidence is altogether unknown to a common law court, and cannot be recognized as a judicial act unless by virtue of a statute like that of 1805.”
As the facts in the present case were controverted, and as no case was stated in the nature of a special verdict for the opinion of the district court as to the law arising thereon, it follows that no error of law committed by the district court appears of record. If we could act upon the stipulation of the parties that the facts of the case are stated in the opinion of the district judge (as was done under the statute of 1805 in Louisiana Mut. Ins. Co. v. Tweed, 7 Wall. [74 U. S.] 44) the judgment below would still have to be affirmed.
There is no distinct finding and no stipulation of the parties that the defendant, when he received the payments or benefit of the payments which are .alleged to give him an illegal preference, knew or had reasonable
The result is that the judgment must be affirmed without looking into the merits of the case. This is the less to be regretted because taking the facts as stated by the court below in its opinion the bank would have had the right to set off the note against the deposit (Bankrupt Act, § 20; Alsager v. Currie, 12 Mees. & W. 750; Bailey v. Finch, L. R. 7 Q. B. 34; Winslow v. Bliss, 3 Lans. 220; Sankey Brook Coal Co. v. Marsh, L. R. 6 Exch. 185), and other creditors or the assignee could not have objected. And unless the opinion of the supreme court in the Traders’ Nat. Bank v. Campbell, 14 Wall. [81 U. S.] 87, 97, 98, decides differently, I should have been of the opinion that Husbands’ consent to apply the money in the way the law would allow the parties to apply it, and his giving a check to that end, would not be fraudulent within the meaning of the act. Whether the case cited holds otherwise, it is r>ot necessary, nor indeed proper, to inquire.
Judgment affirmed.
