61 F. 802 | 8th Cir. | 1894
This was a suit by tbe United States upon the official bond of the United- States marshal for the territory of Wyoming, which was executed by the marshal and his sureties, the defendants in error, on the 23d day of August, 1886. For a breach of the bond, tbe government alleged that tbe marshal bad failed and refused to pay over to the proper accounting officers of the treasury department of the United States the sum of $773.11, which was the property of the United States, and which it was his duty as marshal to so pay. The defendants admitted the receipt
It is apparent from the judgment entry that the circuit court allowed the defendants in error a credit for a large portion of the fees mentioned in the exhibit attached to the defendants’ answer; but, as no demurrer was interposed to the plea claiming these credits, there is nothing in the record to indicate that the government contested the marshal’s right to such allowances if the services charged for were actually rendered. It follows, therefore, that this court will not undertake to determine whether the fees in question, or any of them, weve properly allowed as a credit, inasmuch as it does not appear that an issue of that kind was raised and decided by the trial court. Railway Co. v. Henson, supra; Elliott, App. Proc. §§ 470, 476.
We have already alluded to the fact that the stipulation found in the record does not constitute “an agreed case,” because it does not appear that the case was submitted to the court for its decision upon the facts recited in such stipulation. We are accordingly precluded from considering the question whether the judgment is such as ought to have been rendered on the agreed facts, as we might have done if it clearly appeared that the stipulation was intended to state an agreed case according to the practice approved in U. S. v. Eliasson, 16 Pet. 291; also, in Stimpson v. Railroad Co., 10 How. 329, and Burr v. Navigation Co., 1 Wall. 102.
Finding no reversible error in the record, the judgment of the circuit court is hereby affirmed. '