191 F. 502 | 6th Cir. | 1911
This case was tried by the court below without a jury, under express written waiver thereof, under Rev. Stat. § 649 (U. S. Comp. St. 1901, p. 525). No formal findings of fact were made or asked for. The court, however, filed an opinion, in which the conclusion (among others) was announced that plaintiff’s evidence did not make out the contract alleged in' his petition. Judgment for defendant was accordingly entered. Plaintiff’s motion for new trial was granted only so far as to permit the filing of an amended petition and the resubmission of the case thereunder upon the evidence theretofore submitted, whereupon judgment was again entered for defendant. We think, in view of the state of the record, which it is unnecessary to set out in detail, there was an effective waiver of jury upon the resubmission, notwithstanding no new written stipulation
We are asked to review the final judgment, on the ground that “the finding and the judgment is contrary to law andl the evidence,” and “contrary to the weight of the evidence,” and also because “the conceded and controlling facts entitle the plaintiff to a judgment.” We are asked, also, to review the denial of the motion for new trial, as well as the denial of the motion for the nunc pro tunc order.
If the opinion is to be construed as a special finding of facts, it is enough to say, first, that no exception was taken raising the proposition that there was no substantial evidence tending to support it; and, second, that the testimony tended to support the conclusion that the contract alleged was not made out.
If the court’s opinion is not construed as a special finding of fact, the review can extend only to rulings of the court in the progress of the trial of the cause. No such ruling is presented, unless the court’s opinion referred to can be so treated. In our opinion, it cannot be so construed. It states the court’s opinion upon a question of fact. The fact that this opinion was based only upon the plaintiff’s evidence does not change the situation, not only because no exception was taken to tlie failure to consider defendant’s evidence, but because of the very proper concession that the defendant’s evidence, if considered, would not have changed the result.
For the reasons stated, the judgment of the Circuit Court must be affirmed.