Darby v. Montgomery County Nat. Bank

GRONER, Associate Justice. Appellee, which is a national bank located at Rockville, Md., secured a judgment against appellant and her husband on a joint promissory note discounted by the bank at the request of the husband. Appellant’s husband made no defense. Appellant, however, denied having signed the note or having authorized anyone to sign it for her. The case was submitted to the trial eourt on a written stipulation waiving a jury, and judgment went for the bank, and from this judgment this appeal is taken. The record contains what purports to be a bill of exceptions, including a narrative statement of the evidence, but an examination of the same shows that no exception was taken in the progress of the trial to any ruling of the court, nor was one taken to the finding of the court at the conclusion. “A bill of exceptions is not valid as to any matter which was not excepted to at the trial. * * * And it cannot incorporate into the record nunc pro tunc as of the time when an exception should have been taken, one which in fact was not then taken.” Fleischmann Const. Co. v. United States, etc., 270 U. S. 349, at page 357, 46 S. Ct. 284, 288, 70 L. Ed. 624. The statute in the District of Columbia governing the procedure in the trial of a cause by a eourt on a waiver of jury and declaring the effect of the court’s finding, either general or special, is the same as the statute applying to other federal courts outside the District, except that in the ease of the latter the act was amended in 1930 (46 Stat. 486 [28 USCA § 773]) providing that an oral stipulation when entered of record shall be as binding as one in writing. See Act March 3, 1863, 12 Stat. 762, c. 91, section 72, tit. 18, D. C. Code 1929. See as to Federal District Courts, Act March 3, 1865, § 4, 13 Stat. 501, section 649 R. S., as amended by Act May 29, 1930, 28 USCA § 773. Under these sections the trial judge assumes, in addition to his judicial duties, the function of a jury, and passes on both the law and the facts. His finding on the facts, if general, has the same effect as the verdict of a jury, and the effect of the verdict of a jury is to foreclose all disputed, as well as all undisputed, questions of fact, unless challenged by a motion for binding instructions at the close of the ease. Bank of Waterproof v. F. & D. Co. (C. C. A.) 299 F. 478, 481. We have in the District of Columbia a companion statute (tit. 18, § 73, D. C. Code 1929, 31 Stat. 1201, § 71) regulating proceedings for the preservation of questions of law for review on appeal from the judgment of a eourt without a jury, and it provides that in such eases “an exception may be taken to any ruling of the eourt during the hearing and to such finding on the ground that the evidence was insufficient in law to justify it, and may be stated in a bill of exceptions as in case of a jury trial.” This section is intended to provide the requisites and manner of review in the appellate eourt. It insures re-examination of the rulings made by the trial judge in the course of the trial in every case in which an exception is duly taken to the ruling and after-wards embraced in a proper bill of exceptions, and it further provides the mode of challenging the sufficiency of the evidence and of obtaining a review if the decision is adverse. The usual and proper method to secure this benefit of the statute is by motion for judgment and an exception to its refusal. Only in this way can this court determine whether all the evidence is sufficient to support the judgment of the trial eourt. Here we have neither motion for judgment nor exception to any ruling of the court below, and the record shows nothing more than that after the submission of the whole ease to the judge without argument and after the decision or finding of the judge had been announced, counsel for appellant stated an intention to appeal. It is, of course, important and desirable that there should be preserved to parties submitting a cause to trial the right and benefit of a review in an appellate eourt and perhaps it may be fairly said that, where the parties waive a jury, motions of form or technical exceptions to specific rulings are unnecessary and are useless formalities and that an intention to challenge the judgment, however expressed, is enough, but if this view [183] is to prevail, it 'should be by legislative enactment and not by action of the courts in setting aside rules and practices established by statute and approved and followed over a long period of years. As there is no bill of exceptions in the present record which we may notice, there is nothing which we may review and therefore it follows that the judgment of the lower court must be and is affirmed. Affirmed. It is fair to counsel who argued the case in this court for appellant to say that he was not of counsel in the trial court.