Breuninger v. Lightbown

53 F.2d 551 | D.C. Cir. | 1931

ROBB, Associate Judge.

Defendants below (plaintiffs in error) seek a review of a judgment for the plaintiff below (defendant in error) in the municipal eourt in a suit for commission on the sale of a- house. The ease was tried without a jury.

Defendants contend that the court erred “in ruling that there were before the court sufficient facts in the whole ease upon which could be predicated a finding in favor of the plaintiff.”

At the close of plaintiff’s ease, defendants moved for a finding in their favor, and, to the overruling of this motion, noted an exception. Thereupon defendants introduced evidence by way of defense; thereby waiving the only exception taken during the trial. Main v. Aukam, 4 App. D. C. 51; Hazleton V. Le Duc, 10 App. D. C. 379 ; Trometer v. District of Columbia, 24 App. D. C. 242; Slye v. Guerdrum, 29 App. D. C. 551; Murray v. United States, 53 App. D. C. 119, 288 F. 1008.

Under section 5 of the Municipal Court Act of March 3, 1921, 0. 125, 41 Stat. 1310, 1311 (section 207, tit. 18, D. C. Code), the findings of a judge of that court upon the facts have the “same effect as a verdict of a jury, with the same right of either party to take an exception to any ruling of the court, and have the same embodied in a bill of exceptions, as in case of a jury’trial.”

Section 12 of that act (sections 29 and 213, tit. 18, D. C. Code) provides: “If in any case in the municipal eourt an exception is taken by any party to any ruling or instruction of the court on matter of law the exception shall be reduced to writing and stated in a bill of exceptions. * * * Any party aggrieved by any final judgment of the municipal court may seek a review thereof by the Court of Appeals of the District of Columbia by petition under oath setting forth concisely but clearly and distinctly the nature of the proceeding in said court, tho trial and judgment therein and the particular ruling or instruction upon matter of law to which exception has been taken. * * * ”

Defendants, having introduced evidence and submitted the issue of fact to the court without objection, are now precluded from challenging the court’s finding.. Cooper v. Sillers, 30 App. D. C. 567; Scott v. Herrell, 31 App. D. C. 45; National Metropolitan Bank v. Lincoln, 37 App. D. C. 254; Sullivan v. Killigan, 41 App. D. C. 391; Traver v. Smolik, 43 App. D. C. 150; Ricketts v. United States, 59 App. D. C. 47, 32 F.(2d) 943.

Judgment affirmed, with costs.

Affirmed.