5 F. Cas. 1022 | U.S. Circuit Court for the District of Southern New York | 1869
This action was tried before the court, without a jury, under the provisions of the 1th section of the act of March 3, 1865 (13 Stat. 501), a jury having been waived by a stipulation in writing signed by the attorneys of record, and filed with the clerk of the court. That section provides as follows: “Issues of facts in civil cases in any circuit court of the United States, may be tried and determined by the court without the intervention of a jury, whenever the parties, or their attorneys of record, file a stipulation in writing with the clerk of the court, waiving a jury. The finding of the court upon the facts, which finding may be either general or special, shall have the same effect as the verdict of a jury. The rulings of the court in the cause, in the progress of the trial, when excepted to at the time, may be reviewed by the supreme court of the United States, upon a writ of error or upon appeal, provided the rulings be duly presented by a bill of exceptions. When the finding is special, the review may also extend to the determination of the sufficiency of the facts found to support the judgment.” The proceedings in open court at the trial having been concluded, the case was submitted for determination to the court, which subsequently announced that it found for the plaintiffs for the sum of $16,543.57, as of the 9th of June, 1869. [Case No. 2,881.] No formal finding, either general or special, has been signed, or filed, or entered in the minutes of the court. The defendants now submit to the court the draft of a special finding of the court upon the facts, which they ask the court to sign and file as the finding of the court upon the facts. It consists of eleven statements or propositions. The plaintiffs object to the making by the court of any special finding upon the facts.
It is apparent that, under the statute, it is discretionary with the court to make either a general finding or a special finding. Especially is this so, in view of the prior act of February 19, 1864 (13 Stat. 5), which provides, in its 7th section, as follows, in reference to the circuit courts for the districts of California and Oregon: “Issues of fact in civil cases may be tried and determined by the said circuit court, without the intervention of a jury, whenever the parties, or their attorneys of record, file a stipulation in writing with the clerk, waiving a jury. Upon the trial of an issue of fact by the court, its decision shall be given in writing and filed with the clerk. In giving the decision. the facts found and the conclusions of law shall be separately stated.” This court, therefore, when trying an issue of fact in a civil case, when a jury is waived, is not required to state separately the facts found and the conclusions of law, nor is it required to make a special finding upon the facts. The inquiry then arises, whether it is necessary or proper that the court should make such special finding in this case.
By the statute, the finding, when made, has the same effect as the verdict of a jury. As the trial of an issue of fact before a jury is not concluded until the verdict of the jury is rendered, so the trial of an issue of fact by the court without the intervention of a jury is not concluded until the formal finding of the court upon the facts, which is to have the same effect as the verdict of a jury, is made. When, therefore, the statute speaks of the rulings of the court
In the present case, it is said, on the part of the defendants, that they desire to raise the point, that, as matter of law, on the evidence, one McCoy, at Cincinnati, ought to have given notice, by telegraph from there, at a certain time, to the consignees at New York of the tobacco, of its previous loss, and that, as he did not give such notice, the plaintiffs cannot recover. This is based on the view, that McCoy knew of the loss on the 5th of August, 1SC7, at Cincinnati, and that the insurance was not effected by the consignees at New York, until the Sth of August, IS07. Now, the proper and effectual way to raise this point, is to have it appear, by the record, that the defendants requested the court to rule, as matter of law, that if it should find that McCoy had notice in Cincinnati, as early as the 5th of August, 1SG7, of the loss of the tobacco, and that McCoy was the agent of the plaintiff's to transport the tobacco to New York, and that the plaintiffs had put it into McCoy’s custody, to be retained therein at least until it reached Cincinnati, then McCoy was bound to communicate notice of the loss by telegraph to the consignees at
The cases decided by the supreme court, cited by the defendants’ counsel, do not as I understand them, hold, as is contended, that, whenever a jury is waived, that com’t cannot and will not review anything unless there is in the record a special finding of facts. In Hyde v. Booraem, 16 Pet. [41 U. S.] 169, there was no bill of exceptions, and the court, on a statement of facts, held that, in point of law, the judgment below could not, on those facts, be maintained. Mr. Justice Story, in that case, says, speaking of a trial before the court without a jury: “If either party in the court below is dissatisfied with the ruling of the judge in a matter of law, that ruling should be brought before this court by an appropriate exception in the nature of a bill of exceptions.” In Minor v. Tillotson. 2 How. [43 U. S.] 392, the case was tried before the cotu-t without a jury, but there was no bill of exceptions. In Prentice v. Zane's Adm'r, 8 How. [49 U. S.] 470. there was' a trial before a jury, and a special verdict. In Graham v. Bayne, 18 How. [59 U. S.] 60, there was no bill of exceptions presenting questions of law. The case of Guild v. Frontin, 18 How. [59 U. S.] 135, only decides that where there is a trial before the com’t without the intervention of a jury, there must be either a special verdict or an agreed statement of facts, or a bill of exceptions to the decisions of the com’t on1 questions of law, in order to enable the supreme com’t to review the judgment of the court below.
But, even if a refusal by the supreme court to review a case when a jury was waived, unless there was, in the record, a special finding of facts, had been the established practice before the passage of the act of 1805, the 4th section of that act expressly provides that, where a trial by jury is waived, the finding of the com’t on the facts may be general, and shall, when general, have the same effect as the general verdict of a jury; and that,in the case of such a general finding, every lading of the court in the cause, in the progress of the trial, when excepted to at the time, may, when duly presented by a bill of exceptions, be reviewed by the supreme com’t on a writ of error or on appeal, A special finding in this case, is, therefore, unnecessary, to give to the defendants the full benefit of any exception taken by them at the time to any ruling of the court or any question of law-in the progress of the trial.
But there is a further provision in the 4th section of the act of 18G5, namely, that, “when the finding is special, the review may also extend to the determination of the sufficiency of the facts found to support the judgment.” A losing party in a cause can always have the substantial benefit of this provision, without a special finding on the facts, by requesting the court to rule, as matter of law, that unless every one of such and such facts is found by it to exist, or unless a particular fact is found to exist, his adversary cannot have a general finding in his favor. But a winning party may be seriously prejudiced by a special finding, because, on a review by the supreme court thereon, if any one fact, however slight, really necessary to support the judgment, should, merely through inadvertence or accident, have been omitted from the finding, the judgment would have to be reversed. Graham v. Bayne, 18 How. [59 U. S.] 60, 63.
The com’t. therefore, declines to make a special finding of facts in this case. But. under the circumstances, both parties will now be allowed to propound to the court such written requests as to matters of law, on the evidence taken in the case, as they shall desire, and the court w-ill make written rulings thereon, and exceptions can then be taken thereto. The court will then make a general finding in form. This course can be taken, because the trial is still in progress.