Adkins v. W. & J. Sloane

Eighth Circuit

Adkins v. W. & J. Sloane

61 F. 791, 10 C.C.A. 69, 1894 U.S. App. LEXIS 2232

CourtCourt of Appeals for the Eighth Circuit

DecidedMay 7, 1894

DocketNo. 344

StatusPublished

Cited by7 cases

This text of 61 F. 791 (Adkins v. W. & J. Sloane) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Adkins v. W. & J. Sloane, 61 F. 791, 10 C.C.A. 69, 1894 U.S. App. LEXIS 2232 (8th Cir. 1894).

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Opinion

PER CURIAM.

A motion for a rehearing has been filed in this case, which we have duly considered. The point is urged that, even though it be true that the circuit court made a general finding in favor of the defendant in error and against the plaintiff in error, yet there was no testimony whatever to sustain such fihding. A general exception was taken to the judgment at the time it was entered, and, in view of that exception, it is now urged that it is the duty of this court to review the testimony on which the verdict was based, and to determine whether there was any evidence to support it. We think, however, that this view is erroneous. The case was submitted to the circuit court, by counsel for both parties, upon the evident assumption that there were certain issues of fact which must be determined by the court. The trial court was not asked to grant a peremptory instruction that, upon the undisputed facts, the intervener was entitled to recover; and, in the absence of such a request, it is well settled that we are not authorized to review the finding of the circuit court, even in the respect above stated. This precise question was decided by the supreme court in the cases of Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. 321; Cooper v. Omohundro, 19 Wall. 65; Insurance Co. v. Unsell, 144 U. S. 439, 451, 12 Sup. Ct. 671; and by this court in Village of Alexandria v. Stabler, 1 C. C. A. 616, 50 Fed. 689. It is true that in the two cases last cited the trial was before a jury, but the same rule is applicable when the trial is before the court. To raise the issue in this court, on a writ of error, that there was no evidence to support the verdict of the trial court, it should be made to appear that the same issue was presented to the trial judge by an appropriate instruction. The motion for a rehearing is accordingly denied.

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PER CURIAM.

A motion for a rehearing has been filed in this case, which we have duly considered. The point is urged that, even though it be true that the circuit court made a general finding in favor of the defendant in error and against the plaintiff in error, yet there was no testimony whatever to sustain such fihding. A general exception was taken to the judgment at the time it was entered, and, in view of that exception, it is now urged that it is the duty of this court to review the testimony on which the verdict was based, and to determine whether there was any evidence to support it. We think, however, that this view is erroneous. The case was submitted to the circuit court, by counsel for both parties, upon the evident assumption that there were certain issues of fact which must be determined by the court. The trial court was not asked to grant a peremptory instruction that, upon the undisputed facts, the intervener was entitled to recover; and, in the absence of such a request, it is well settled that we are not authorized to review the finding of the circuit court, even in the respect above stated. This precise question was decided by the supreme court in the cases of Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. 321; Cooper v. Omohundro, 19 Wall. 65; Insurance Co. v. Unsell, 144 U. S. 439, 451, 12 Sup. Ct. 671; and by this court in Village of Alexandria v. Stabler, 1 C. C. A. 616, 50 Fed. 689. It is true that in the two cases last cited the trial was before a jury, but the same rule is applicable when the trial is before the court. To raise the issue in this court, on a writ of error, that there was no evidence to support the verdict of the trial court, it should be made to appear that the same issue was presented to the trial judge by an appropriate instruction. The motion for a rehearing is accordingly denied.

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Bluebook (online)

61 F. 791, 10 C.C.A. 69, 1894 U.S. App. LEXIS 2232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adkins-v-w-j-sloane-ca8-1894.

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