Olcott v. Ennis-Calvert Compress Co.

PARDEE, Circuit Judge (after stating the facts as above). The first finding of fact is that the facts in this case are the same as in the case of Houston & T. C. R. Co. v. Ennis-Calvert Compress Co., decided by the court of civil appeals, and reported in 56 S. W. 367, to which reference may be made. If we turn to the said reported case, wc find an opinion of the court of civil appeals reviewing a triál and judgment in the district court of McLennan county, Tex., in a suit for trespass to try title, involving the property herein in controversy. There was no specific finding of facts in the district court of McLennan county, nor is there any such finding in the report of the case as determined in the court of civil appeals; but we find in the opinion of the court a statement of the issues between the parties, the compress company’s title, and a ruling as to the divestiture of title depending upon a re-entry by the original grantor, a recital of the contentions of the parties as to the facts claimed and the facts proved, and many other matters of fact more or less intermingled with conclusions of law; but nowhere in the opinion do wc find, without much analysis and examination, any clear-cut finding of fact, — ultimate fact. This is not a finding of fact that we are called upon, or ought to be called upon, to consider, even if the report of the case to which we are sent to find facts had been recited in the record. On the waiver of a jury in a civil case in the circuit court the finding of facts by the court is strictly analogous to a special verdict, and should state the ultimate facts of the case. Norris v. Jackson, 9 Wall. 125, 19 L. Ed. 608; Coddington v. [910] Richardson, 10 Wall. 516, 19 L. Ed. 981; Town of Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. 321, 28 L. Ed. 862. To the same effect is Raimond v. Parish of Terrebonne, 132 U. S. 192, 10 Sup. Ct. 57, 33 L. Ed. 309, which seems to be a case in many respects similar to this, and the court said : “In the present ease the pleadings present issues of fact. There is no bill of exceptions. The so-called statement of facts is mainly a recapitulation of evidence introduced by the parties at the trial. The case was not submitted to the decision of the court upon that statement only, but the court made a further finding as to what took place at the trial. That finding merely states that the parties admitted that, so far as the facts were stated in a certain reported opinion of the supreme court of Louisiana, they were a correct statement of the facts of this case; but that each party claimed that there existed additional facts, as to which there is no finding. On referring to that opinion, such facts as are there stated appear to be scattered through it, intermingled with statements of conflicting evidence and with the court’s conclusions of fact upon that evidence, as well as with its conclusions of law. State v. Police Jury of Terrebonne Parish, 30 La. Ann. 287. In short, there is nothing in the present ease which can be called, in any legal or proper sense, either a statement of facts by the parties or a finding of facts by the court; and no question of law is presented in such a form as to authorize this court to consider it. Judgment affirmed.” In the present case there is a bill of exceptions that purports to recite a part of the evidence, to wit, the transfer, through foreclosure proceedings, from the Houston & Texas Central Railway Company to F. P. Olcott, and from F. P. Olcott to the Houston & Texas Central Railroad Company, all as recited above in the fourth finding of fact; and the bill concludes with the finding of facts and conclusions of law as above given, so that this bill of exceptions does not in any respect aid the first finding of fact. The third and last conclusion of law contains the trial judge’s reason for judgment, and is based upon the judgment in the case of Houston & T. C. R. Co. v. Ennis-Calvert Compress Co., affirmed in the court of civil appeals, which is in the record only as referred to in the first finding of fact. This shows that the finding of facts, with the first eliminated, is partial and incomplete, and the case is in no condition for our review on the sole question involved; i. e., whether the facts proved and found warranted the judgment rendered. The judgment of the circuit court is affirmed.