Raymer v. Netherwood

MACK, Circuit Judge. A review of this case is challenged on the ground that no question of law is presented to us. The case was tried under a stipulation waiving a jury. At the conclusion of the evidence, defendant requested numerous findings of [285] evidentiary facts, and the conclusion of law therefrom that no contract had been consummated between the parties, and that the action should be dismissed. To the refusal to grant these requests, and to the findings of a contract, the breach thereof, and that plaintiff was entitled to judgment, defendant excepted. In Streeter v. Sanitary District of Chicago, 133 Fed. 124, 66 C. C. A. 190, Judge Jenkins carefully defined the reviewing power of this court. Expressions used in .other opinions have, however, caused some uncertainty as to the proper method of securing such a review. The confusion is apparently due to the failure to discriminate between the several functions of the trial judge, and to make clear on the record the exact questions presented to him by motions or requests. In a jury trial, under modern practice, a motion or request for a directed verdict challenges the right of the opponent to recover, on the ground that there is no substantial evidence which would support a verdict in his favor. The correctness of the ruling thereon, if excepted to, presents a question reviewable on writ of error. Clearly the like question, arising on trial without a jury, is reviewable, if in some way it be made clear that a similar ruling has been requested. A request or motion, whether for special or general findings, or, if by defendant, for a'dismissal of the action, and an exception to the refusal thereof, or an exception to the findings in favor of an opponent, is not, however, sufficient to raise the question. Such a request, motion, or exception, without more, is the proper method of invoking or challenging the jury-supplanting function of the trial judge, to determine whether one or the other side is sustained by a preponderance of the evidence, a determination not reviewable on writ of error in a federal appellate tribunal. Because of the dual function of the trial judge, sitting without a jury, to determine both whether there is any substantial evidence to support one or the other party and also, if there is, then whether it preponderates on one or the other side, the request or motion to adjudge either all the issues or some specific issues in favor of the requesting party or against the adverse party, to be reviewable, must make apparent that it is based specifically upon the first of these grounds, namely, that there is no substantial evidence to sustain any other conclusion. Then, and then only, as Judge Sanborn has clearly pointed out in Wear v. Imperial Window Glass Co., 224 Fed. 60, 139 C. C. A. 622 (8th C. C. A.), may the refusal of the trial judge to grant the request, if excepted to, be reviewed. In the instant case, no such specific ground for the requested findings and motion was alleged. Judgment affirmed.