Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

By overruling all exceptions of both parties to the report of referee, and rendering judgment for the exact sum found by m to be due, the court evidences its intention. to adopt the findings of the referee as its own; and the court of review may treat them as if made by the District Court.18

A general exception to the action of the court in overruling in a mass the exceptions taken to the report of the referee is too indefinite to present any question for review by the appellate court, and if any one of the rulings of the referee excepted to was correct, the exception is bad.19

Under the Arbitration Act of July 15, 1913,20 it has been held that an award is subject to review only upon some ground which affects the jurisdiction.21

The court of review has reviewed the decision of the lower court upon a motion to strike out a notice of a termination of the reference, which was decided after the report was filed, and also the decision of a motion to set aside the report because of such a notice.22

It was held that a stipulation to refer a case to a special master, and that the rights of the parties shall be the same as though the case were one within the terms of the State statute, neither enlarges nor contracts the rights of the parties with respect to a review by the Circuit Court of Appeals of a judgment on a trial without a jury,23 and that an oral consent in open court to an order of reference, made pursuant to a State statute of Nebraska, will not enable the Circuit Court of Appeals in the Eighth Circuit to review the action of the Circuit Court on exceptions to the referee's report, where there is no bill of exceptions making that report, or the evidence upon which it was founded, a part of the record.24 In the absence of a statute or a rule upon the subject, where the issues

18 Philadelphia Casualty Co. V. Fechheimer, C. C. A., 220 Fed. 401. 19 Philadelphia Casualty Co. V. Fechheimer, C. C. A., 220 Fed. 401. 20 38 St. at L. 107, ch. 6, § 8. See supra, $779.

21 Georgia & F. Ry. Co. V. Brotherhood of Locomotive Engineers, C. C. A., 717 Fed. 755.

22 Parker v. Ogdensburg, L. & L. C. R. Co., C. C. A., 79 Fed. 817. 23 Shipman V. Ohio Coal Exchange, C. C. A., 70 Fed. 652.

24 Dietz v. Lymer, C. C. A., 63 Fed. 758. See also Board of Com'rs of Hamilton County v. Sherwood, C. C. A., 64 Fed. 103.

of fact at common law had been referred to a referee to make findings of fact, it was held that the judge of the court of first instance could not set aside the findings of the referee, unless it appeared that the latter had been guilty of some misconduct or had denied both parties a full and fair hearing; 25 and the judge has no power himself to determine the issues of fact; 26 except, perhaps, to correct a manifest clerical error; but he can only confirm or reject the referee's findings or order,27 or order new findings, 28 or send the case back to him for further findings; 29 and in case they are set aside, the cause will be sent back to the same referee, 30 or stand for trial as if it had never been referred.31

Ordinarily, judgment upon a referee's report may be entered by the clerk without an application to the court.32 After judgment has been entered on a referee's report, a new trial cannot be granted by the referee or the court; 33 but after the report has been filed and before judgment, possibly the referee may correct a manifest clerical error in the report.34

§ 476. Agreed statement of facts. A judgment upon an agreed statement of facts presents nothing but a question of law, which may be reviewed on a writ of error. It resembles a special verdict by a jury, or special findings by the court.2

25 United States v. Ramsey, 158 Fed. 488.

26 David Lupton's Sons Co. v. Auto. Club of America, 225 U. S. 489, 56 L. ed. 1177; Boatmen's Bank v. Trower Bros. Co., C. C. A., 181 Fed. 804. Contra, Boatmen's Bank v. Trower Bros. Co., 171 Fed. 964; Kilduff v. John A. Roebling's Sons Co., 150 Fed. 240. 27 Boatmen's Bank V. Trower Bros. Co., C. C. A., 181 Fed. 804.

28 Boatmen's Bank V. Trower Bros. Co., C. C. A., 181 Fed. 804. See Paine v. Standard Plunger Elevator Co., 186 Fed. 605.

29 Ibid.

30 Ibid.

31 U. S. v. Ramsey, 158 Fed. 488; Elkin v. Denver Engineering Works Co., C. C. A., 181 Fed. 684.

32 Alder v. Edenborn, 198 Fed. 928.

33 Ibid.

34 Kilduff v. John A. Roebling's Sons Co., 150 Fed. 240.

$ 476. 1 Bonod v. Dustin, 112 U. S. 604, 607; 28 L. ed. 835, 836; Supervisors v. Kennicott, 103 U. S. 554, 26 L. ed. 486; U. S. v. Eliason, 16 Pet. 291, 10 L. ed. 968; Burr v. Des Moines R. & Nav. Co., 1 Wall. 99, 17 L. ed. 561; Campbell v. Boyreau, 21 How. 223, 226, 16 L. ed. 96, 97; Mutual Life Ins. Co. v. Kelly, C. C. A., 114 Fed. 268. But see Glenn v. Flant, 134 U. S. 398, 33 L. ed. 969.

2 Hipple v. Bates County, C. C. A., 223 Fed. 22.

3

The statement of agreed facts must consist of facts only, and ot contain a recapitulation of the evidence, nor should it conCain evidential facts, from which an ultimate fact might be, but is not, found. Nothing can be imported therein by infer

ence or deduction.

If, however, it states the ultimate facts, it will not be vitiated because it contains the evidential facts as well.6

Where the plaintiff in error stipulated that the findings below were correct, they will be considered as an agreed statement of facts."

When a judgment of agreed facts is reversed because the facts stipulated were evidential only, a new trial may be ordered with liberty to each party to offer additional evidence not inconsistent with the stipulation.

Where the agreed facts do not support the judgment there must be a reversal.8

The sufficiency of the facts agreed upon may be reviewed by writ of error 10 although there was no request below for a declaration or conclusion of law.11

A statement of facts agreed by the parties, that is, a case stated, in an action of law, waives all questions of pleading, or of form of action, which might have been cured by amendment; but formerly it could not enable a court of law to assume the jurisdiction of a court of equity.12 For example, in a State where the remedy of a mortgagee against one who had covenanted with a mortgagor to pay the mortgage is in equity, a case stated

3 Raimond v. Terrebonne Parish, 132 U. S. 192, 33 L. ed. 309.

4 Wilson v. Merchants' L. & Tr. Co., 183 U. S. 121, 46 L. ed. 113; U. S. Trust Co. v. New Mexico, 183 U. S. 535, 46 L. ed. 315; Burnham v. No. Chicago St. Ry. Co., C. C. A., 88 Fed. 627. See Olcott v. Ennis-Calvert Compress Co., C. C. A., 114 Fed. 907.

5 Ibid.

6 Am. Nat. Bank v. Watkins, C. C. A., 119 Fed. 545; Philadelphia Casualty Co. v. Fechheimer, C. C. A., 220 Fed. 401.

7 Burnham v. No. Chicago St. Ry. Co., C. C. A., 88 Fed. 627.

8 U. S. v. Cleage, C. C. A., 161 Fed. 85; Talcott v. Friend, C. C. A., 179 Fed. 676.

9 Northern Commercial Co. v. U. S., C. C. A., 217 Fed. 33.

10 Blair v. U. S., C. C. A., 241 U. S. 217.

11 Hipple v. Bates County, C. C. A., 223 Fed. 22.

12 Willard v. Wood, 135 U. S. 309, 314, 34 L. ed. 210, 213.

could not authorize him to sue at law.18 But it has been held that a stipulation in an action of assumpsit to submit the case to the court upon an agreed statement of facts, with like effect as though the same had been found by a jury, judgment to be entered for the party whom the court finds to be entitled thereto, authorizes judgment in favor of the plaintiff for a sum of money, although his rights are purely equitable in their nature.14

§ 477. Rules of decision at common law. The Revised Statutes provide that "the laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." This rule applies to condemnation proceedings and to all civil proceedings in the Federal courts, except equity and admiralty cases, although they are not strictly according to the common law.2

This statute refers only to substantive law and has no application to procedure in Federal courts.3

It has been held that this statute does not apply to questions of commercial law, or those which involve the application of principles of the common law which are general throughout the United States, and although settled by the decision of State courts are not regulated by a State statute. Upon questions of this nature, except in the case of a local rule of property, the Federal courts are not bound by the decisions of the State courts; although they lean toward agreement with the latter

13 Willard v. Wood, 135 U. S. 309, 34 L. ed. 210, supra, § 453. 14 Knight v. Fisher, 58 Fed. 991. § 477. 1 U. S. R. S. § 721. 2 N. Y., N. H. & H. R. of A. v. Cockraft, 49 Fed. 3, 4.

3 McBride v. Neal, C. C. A., 214 Fed. 966; see supra § 453.

4 Swift v. Tyson, 16 Pet. 1, 10 L. ed. 86; Burgess v. Seligman, 107 U. S. 20, 33, 34, 27 L. ed. 359, 365, per Bradley, J. Daly v. James, 8 Wheat. 495, 5 L. ed. 670; Elmendorf v. Taylor, 10 Wheat. 152, 6 L. ed. 289; Shelby v. Guy, 11 Wheat. 361,

6 L. ed. 495; Jacksin v. Chew, 12 Wheat. 153-108, 6 L. ed. 583-589; Fullerton v. Bank of U. S., 1 Pet. 604, 7 L. ed. 280; Gardiner v. Collins, 2 Pet. 58, 7 L. ed. 347; U. S. v. Morrison, 4 Pet. 124, 7 L. ed. 804; Green v. Neal's Lessee, 6 Pet. 291, 8 L ed. 402; Groves v. Slaughter, 15 Pet. 449, 10 L. ed. 800; Swift v. Tyson, 16 Pet. 1, 10 L. ed. 865; Carpenter v. Providence Washington Ins. Co., 16 Pet. 495, 10 L. ed. 1044; Carroll v. Safford, 3 How. 441, 11 L. ed. 671; Lane v. Vick, 3 How. 464, 11 L. ed. 681; Howan v. Runnels, 5

when the question under consideration is doubtful, and it has been said should follow them unless strongly convinced of their error.6

Such are the laws of insurance; 7 the liability for negligence by employers, common carriers and telegraph compa

How.

8

134, 12 L. ed. 85; Smith v. Kernochen, 7 How. 198, 12 L. ed. Nesmith v. Sheldon, 7 How.

666;

L. ed. 925; Williamson v. 812, 12 Berry, 8 How. 495, 12 L. ed. 1170; Van Rensselaer v. Kearney, 11 How. 297, 13 L. ed. 703; Webster v. Cooper, 14 How. 488, 14 L. ed. 510; Ohio Life Ins. & Tr. Co. v. Debolt, 16 How. 416, 14 L. ed. 997; Beauregard v. New Orleans, 18 How. 497, 15 L. ed. 469; Watson v. Tarpley, 18 How. 517, 15 L. ed. 509; Pease v. Peck, 18 How. 595, 15 L. ed. 518; Morgan v. Curtenius, 20 How. 1, 15 L. ed. 823; League v. Egery, 264, 16 L. ed. 655; Suydam Williamson, 24 How. 427, 16 L. ed. 742; s. c., 6 Wall. 736, 18 L. ed. 972; Leffingwell v. Warren, 2 Mercer 83, 17

24 How.

V.

Black, 599, 17 L. ed. 261; County v. Hucket, 1 Wall. L. ed. 548; Gelpcke v. City of Dubuque, 1 Wall. 175, 17 L. ed. 520; Seybert v. Pittsburgh, 1 Wall. 272, 17 L. ed. 553; Havemeyer v. Iowa County, 3 Wall. 294, 18 L. ed. 38; Thompson v. Lee County, 3 Wall. 327, 18 L. ed. 177; Christy V. Pridgeon, 4 Wall. 196, 18 L. ed. 322; Mitchell v. Burlington, 4 Wall. 270, 18 L. ed. 350; Lee County V. Rogers, 7 Wall. 181, 19 L. ed. 160; Butz v. City of Muscatine, 8 Wall. 575, 19 L. ed. 490; City

V.

Lamson, 9 Wall. 477, 10 L. ed. 725; Olcott v. Supervisors, 16 Wall. 678, 21 L. ed. 382; Supervisors v. U. S., 18 Wall. 71, 21 L. ed. 771; Boyce v. Tabb, 18 Wall. 546, 21 L. ed. 757; Pine Grove v. Talcott, 19

Wall. 666, 22 L. ed. 227; Elmwood v. Marcy, 92 U. S. 289, 23 L. ed. 710; State Railroad Tax Cases, 92 U. S. 575, 23 L. ed. 663; Ober v. Gallagher, 93 U. S. 199, 23 L. ed. 829; Town of South Ottawa v. Perkins, 94 U. S. 260, 24 L. ed. 154; Davie v. Briggs, 97 U. S. 628, 24 L. ed. 1086; Fairfield v. County of Gallatin, 100 U. S. 47, 25 L. ed. 544; Oates v. National Bank, 100 U. S. 239, 25 L. ed. 580; Douglas v. County of Pike, 101 U. S. 677, 25 L. ed. 968; Barrett v. Holmes, 102 U. S. 651, 26 L. ed. 291; Thompson v. Perrine, 103 U. S. 806, 26 L. ed. 612; s. c., 106 U. S. 589, 27 L. ed. 298.

5 Lankford v. Platte Iron Works, 235 U. S. 461; Sim v. Edenborn, 242 U. S. 631, 136; Holden v. Circleville Light & Power Co., 216 Fed. 490; Memorial Hospital Association, 229 Fed. 839; U. S. v. Brewer-Elliott & Gas Co., 249 Fed. 609.

6 Norfolk Bank v. Whipple, 254 Fed. 195.

7 Carpenter v. Providence Washington Ins. Co., 16 Pet. 495, 10 L. ed. 1044; Hening v. U. S. Ins. Co., 2 Dill. 26. But see Brown v. Pacific Coal Co., 241 U. S. 571; infra, § 477b.

8 Hough v. Railway Co., 100 U. S. 213, 226, 25 L. ed. 612, 618; Coyne v. Union Pac. R. Co., 133 U. S. 370, 33 L. ed. 651; Quebec S. S. Co. v. Merchant, 133 U. S. 375, 33 L. ed. 656; Baltimore & O. R. Co. v. Daugh, 149 U. S. 368, 37 L. ed. 772; Gardiner v. Mich. C. R. Co.,

« ΠροηγούμενηΣυνέχεια »