Fitzgerald v. Bassford

DALLAS, Circuit Judge. We abstain from expressing any opinion upon the merits of the controversy in this case, because we have no authority to review the decision of them which was made by the court below. The action was tried without the intervention of a jury, under the act of Congress of March 3, I860 (Rev. St. § 649 [U. S. Comp. St 1901, p. 525]), and the only specification of error relied upon, is, that the court “erred in entering judgment in favor of the plaintiff and against the defendant.” This specification does, not aver that the judgment to which it relates was founded upon any special finding of fact, and we cannot assume that any such finding was either requested or made, for there is nothing in the record which would justify us in doing so. All that appears is “a general verdict, which includes or may include, as it generally does, mixed questions of law and fact”; and that “in such cases, a bill of exceptions cannot be used to bring up the whole testimony for review any more than in a trial by jury,” is too well settled to be open to question. Norris v. Jackson, 9 Wall. 125, 19 L Ed. 608; Kearney v. Case, 12 Wall. 275, 20 L. Ed. 395; Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. 321, 28 L. Ed. 862; Dooley v. Pease, 180 U. S. 126, 21 Sup. Ct. 329, 45 L. Ed. 457. There is, therefore, no error of which we can take cognizance, and the judgment of the Circuit Court is affirmed.