230 F. 378 | 6th Cir. | 1916
At the threshold we are met by the contention of plaintiffs in error that the court below had no jurisdiction to refer the cases to the master commissioner, or to take further proceedings therein, for the reason that the order of reference was made without their consent and without waiver of trial by jury.
In our opinion the Edwards Company not only seasonably asserted its right to a jury trial, but, so far as the record shows, has done nothing amounting to a waiver; for we think it clear that it waived no rights by failing to take formal exceptions to the order of reference previously made; and it participated in the proceedings before the master only under protest, and upon the hearing before the court apparently not at all. We are therefore constrained to reverse the judgment in No. 2802, and to remand the record for further proceedings.
As to the other defendants the situation is materially different. Both appeared before the master and participated in the trial without protest or objection of any kind to his jurisdiction. They also appeared by counsel before the District Court on the hearing of the trustee’s exceptions to the master’s report and participated therein. So far as the record shows, neither made any objection or protest of any kind to the reference and proceedings thereunder until after the reversal of the master’s judgment by the court, and the entry of judgment accordingly.
The ultimate questions are, first, whether such appearance and participation without objection in the proceedings both before the master and the court amounted to a waiver of the right to trial by jury under
The order referring the causes to the master commissioner is printed in the margin.
The findings of the court in each of the three cases as incorporated in the respective judgments, are printed in the margin of this opinion.
“It is therefore considered and adjudged and ordered that plaintiff, Jesse E. La Dow, trustee, recover from the defendant, —-, said sum of $-, together with interest at the rate of 6 per cent, per annum from February 4, 1915, and also his costs taxed at $-, and the defendant pay its own costs taxed at $-, for which judgment and costs execution is awarded unless payment be made to him on or before March 20, 1915. To all of which rulings, judgment and order defendant at the time excepted.
The judgments in Nos. 2804 and 2806 are .affirmed with costs; the judgment in No. 2802 is reversed with costs, and the cause remanded for further proceedings not inconsistent with this opinion.
“Tliis cause coming on for hearing upon the motion of the plaintiff for a reinstatement of said cause, and the court being fully advised in the premises, do grant the same, and it is ordered that this cause be reinstated on the docket of this court. This cause coming on further to be heard upon the motion of the plaintiff for an order of the court referring the same to a master commissioner, and the court being fully advised in the premises and for good cause shown, do sustain said motion; it is therefore ordered that this cause be referred to L. H. Bean, who is hereby appointed for that purpose, and who shall forthwith upon being duly qualified, proceed to take testimony and hear said cause, and report all the matter and findings therein to this court for further proceedings.”
“Tliat on the 4th day of January, 1910, and for months prior thereto, said 1\ H. Miller was hopelessly insolvent, and that defendant in the exercise of ordinary care and prudenc-e, was charged with such knowledge of insolvency at the date of the sale of the assets of said F. H. Miller, to wit, January 4, 1910, and prior thereto; and that while so insolvent said bankrupt paid to defendant, and defendant received and accepted of said bankrupt the sum of §-on said (late in payment of its claim, which payment was a preference to the exclusion of other creditors of the same class, and contrary to the provisions of law; and that the defendant —-is hereby indebted to the plaintiff, J esse E. La Dow, trustee, in the sum of $--, inclusive of interest at 6 per cent, to February 4, 1913.”
“(7) The judgment of the court is not sustained by the evidence and is against the weight of all the evidence.”