Mound Valley Vitrified Brick Co. v. Mound Valley Natural Gas & Oil Co.

205 F. 147 | 8th Cir. | 1913

HOOK, Circuit Judge.

There were two trials of this case in the District Court; the first to a jury, the second by the court without a jury.

[ 1 ] A verdict for the plaintiff at the first trial was set aside by the court and a new trial was directed. Plaintiff complains of this. In the courts of the United States the granting of a new trial is regarded as an exercise of discretion, and is not reviewable on- error.

[2] At the second trial, which was on the same evidence as before, the court found generally for defendant and rendered judgment accordingly. We are also asked to review that action, but cannot do so. No special findings of fact were made, or request for a finding for plaintiff, or for declarations of law applicable to the evidence; and no complaint is made of rulings on the admission or exclusion of evidence. The decisions of the Supreme Court and of this court, construing and applying the act of Congress on this subject, are numerous and need not be cited. They hold uniformly that, where the parties to an action at law waive a jury and submit the'issues of fact to the court, an appellate court cannot review its general finding thereon, and that to preserve .questions of law for review they must be presented to the trial court in ways definitely pointed out.

[3,4] On a writ of error in an action at law, the appellate court' is confined to questions of law. The conclusion to be drawn from special findings of fact is one of law; and a request by one party or the other for a finding in his favor, like a motion for a directed verdict in a trial to a jury, is an assertion that, taking all the evidence most strongly against him, still, as matter of law, the judgment should be in his favor.

The judgment is affirmed.