Corliss v. Pulaski County

116 F. 289 | 7th Cir. | 1902

JENKINS, Circuit Judge

(after stating the facts a's above). The finding of the trial court upon the facts may be “either general or special.” Rev. St. § 649. It cannot be both. British Queen Min. Co. v. Baker Silver Min. Co., 139 U. S. 222, 11 Sup. Ct. 523, 35 L. Ed. 147; Austin v. Hamilton Co., 22 C. C. A. 128, 76 Fed. 210; Wesson v. Saline Co., 20 C. C. A. 227, 73 Fed. 917. Here the court rendered a general finding for the defendant below, upon which judgment was entered. Some two months thereafter, but at the same term, the trial judge signed a bill of exceptions, and also a paper purporting to be a special finding, which embodies as well the recital of a motion for a new trial, and of the judgment previously rendered, and of the exceptions taken to the action of the court. This is wholly without authority of law. There was no order vacating the former action of the court, and substituting the special for the general finding, and then entering judgment thereon. The general finding and the judgment stand unimpeached, not set aside or superseded by the subsequent special finding. The judgment was rendered upon the general, not upon the special, finding. The latter accompanies, and is manifestly a part of, the bill of exceptions. A practice such as this tends toward confusion, and cannot be 'sustained. The rule of the statute is simple. The finding must be general or special, not both. With a general finding nothing is presented for review but questions apparent upon the record, or those arising at the trial, if properly reserved by exception. The special finding should declare all the ultimate facts determining the issues, and essential to support the judgment. It 'should be complete in itself, unaided by reference to bill of exceptions; but documents set out in the pleadings or otherwise in the record may be referred to without recopying (Wesson v. Saline Co., supra), and should not contain any statement of the evidence (Norris v. Jackson, 9 Wall. 125, 19 L. Ed. 608; Raimond v. Terrabonne Parish, 132 U. S. 192, 10 Sup. Ct. 57, 33 L. Ed. 309; Glenn v. Fant, 134 U. S. 398, 10 Sup. Ct. 583, 33 L. Ed. 969; Lehnen v. Dickson, 148 U. S. 71, 13 Sup. Ct. 481, 37 L. Ed. 373; St. Louis v. W. U. Tel. Co., 166 U. S. 388, 17 Sup. Ct. 608, 41 L. Ed. 1044; Wilson v. Trust Co. [decided Dec. 2, 1901] 22 Sup. Ct. 55, 46 L. Ed. 113).

In the paper before us the first, third, and tenth findings are, under this rule, wholly insufficient, finding no ultimate fact, and are intelligible only when read in connection with the evidence, to which we have not right for that purpose to refer. The sixth and ninth findings are of mere conclusions of law. We greatly doubt if the special finding— assuming that we may properly consider it—is sufficient to sustain the judgment rendered, or could sustain a judgment for either party. It does not, however, supersede the general finding, if it may be held to-qualify it in respect of any ultimate fact found. The general finding cannot be disregarded. It must stand, and, standing, there is nothing presented for review.'

The judgment is affirmed.