Java Cocoanut Oil Co. v. Pajaro Valley Nat. Bank

RUDKIN, Circuit Judge. Section 649 of the Revised Statutes (Comp. St. § 1587) provides that issues of fact in civil cases may be tried and determined by the court without the intervention of a jury, whenever the parties or their attorneys of record file yvith the clerk a stipulation in writing waiving a jury. The finding of the court upon the facts, which may be either general or s'pecial, shall have the same effect as the verdict of a jury. Section 700, Rev. St. (Comp. St. § 1668), provides that, when an issue of fact in any civil cause is tried and determined by the court without the intervention of a jury, and the finding is special, the review by the Supreme Court may extend to the determination of the sufficiency of the facts found to support the judgment. A jury was waived in this case in accordance with the requirements of section 649, supra. At the close of the trial the court filed a written opinion, directing a judgment in favor of the plaintiff for a stated amount, and closing with the statement; “The foregoing are the findings and conclusions herein.” Judgment was entered accordingly, [306] and both parties have brought the case to this court by writ of error, treating the opinion of the trial court as a special finding, within the purview of section 700, supra. The assumption by the 'parties that the opinion of the court constitutes a special finding is without foundation, and there is therefore no question before us for review. “On the trial no exceptions were taken to any ruling of the court, and no request was made for special findings, or for a finding in favor of the defendant in the action. The plaintiff in error refers to the opinion of the court below as containing special findings of fact, but the opinion cannot he resorted to for that purpose.” Northern Idaho & Montana P. Co. v. A. L. Jordan L. Co. (C. C. A.) 262 Fed. 765, and cases cited. We have not lost sight of the fact that the opinion is here declared to be the findings of the court, but such a declaration cannot make of the opinion something which it manifestly is not. “The special finding contemplated by the statute is a specific statement of those ultimate facts upon which the law must determine the rights of the parties. It corresponds to the special verdict of a jury, is equally specific and responsive to the issues, and is spread at large upon the record, as part thereof, in like manner as is such a verdict.” United States v. Sioux City Stockyards Co., 167 Fed. 126, 92 C. C. A. 578, and cases cited. Here the opinion contains seven pages in all. It is made up largely of arguments and conclusions. It discusses the facts from different angles and viewpoints. The utter futility of attempting to review a judgment on such a finding is made apparent by the arguments before this court. One side claims that the court found one thing, the other side claims that the court found something entirely different, and each side refers to some part of the opinion to support his claim. Furthermore, if the o'pinion is to be deemed a finding at all, it is a general and not a special one, because it disposes of all the issues in the case and directs a judgment in favor of the plaintiff, and in such cases the finding must be either general or special. It cannot be both. “This case was tried by the Circuit Court without a jury, and under sections 649 and 700, Rev. Stat., the finding must be ‘either general or special.’ It cannot be both. Here there was a general finding. The record contains a bill of exceptions, but no exceptions to the rulings of the court in the progress of the trial of the cause were thereby duly presented, and although after reciting the evidence it is therein stated that ‘the court thereafter and during the said term» made the following findings of fact and judgment thereon,’ which is followed by an opinion of the court assigning reasons for its conclusions, this cannot be treated as a special finding enabling us to determine whether the facts found support the judgment, nor can the general finding be disregarded.” British Queen Mining Co. v. Baker Silver Mining Co., 139 U. S. 222, 11 Sup. Ct. 523, 35 L. Ed. 147. See, also, Wesson v. Saline County, 73 Fed. 917, 20 C. C. A. 227; Austin v. Hamilton County, 76 Fed. 208, 22 C. C. A. 128; Corliss v. Pulaski County, 116 Fed. 289, 53 C. C. A. 567. As already stated, the finding of the court must be deemed a general one, and this general finding is in no wise limited, qualified, or controlled by other parts of the opinion. United States v. Cleage, 161 Fed. 85, 88 C. C. A. 249. There is no error apparent upon the face of the record, and the judgment is therefore affirmed.