12 F.2d 772 | 7th Cir. | 1926
This is an action for damages for deceit, brought in the state court and removed by plaintiffs in error to the court below. The cause was tried by the court without a jury, a jury being waived. No stipulation in writing waiving a jury was filed with the clerk, as required by section 649 of the Revised Statutes (Comp. St. § 1587). Under section 700
Plaintiffs in error urged upon the argument, and contend in their briefs, that the trial court erred in its rulings upon the statute of limitations and upon the applicability and validity of the Texas statute, set forth in the declaration, authorizing the assessment of exemplary damages. These were rulings in the progress of the trial, which can only be reviewed when the written waiver is filed, as provided in section 649. Some of the eases hold that, when no written stipulation is filed, the only question that can be presented in this court is whether the declaration is sufficient to sustain the judgment; others hold “no questions are open to review on error, except they arise on the process, pleading, or judgment.” But plaintiffs in error have not put themselves in position to raise any question upon these. The statute authorizing writs of error requires that there he annexed to and returned with the writ of error an assignment of errors, and by rule of this court errors not assigned will not be considered. Plaintiffs in error have made numerous assignments, the corporation 26 and the individual 27, but not one of these challenges the sufficiency or validity of the process or pleadings or judgment, or raises any question upon either of them.
The corporation plaintiff in error insists that the service upon it was not good and should have been quashed. If the ruling of the trial court upon this question was error, we cannot notice it as a plain error not assigned, because under the rule we may only
Affirmed.
Comp. St. § 166S.
