Emerzian v. S. J. Kornblum & William Kornblum

3 F.2d 995, 1925 U.S. App. LEXIS 3854

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 16, 1925
• Docket: No. 4388
• Status: Published

Opinion

RUDKIN, Circuit Judge.

This is a writ of error to review a judgment in an action at law tried by the court without the intervention of a jury. There was no stipulation in writing waiving a jury filed with the clerk, as required by section 649 of the Revised Statutes (Comp. St. § 1587). In the absence of such a stipulation it has been held in an almost endless line of decisions that rulings made in the progress of the trial cannot be reviewed by an appellate court, unless error appears on the face of the process, pleadings, or judgment. Duncan v. Atchison, T. & S. F. R. Co., 72 F. 808, 19 C. C. A. 202; Erkel v. United States, 169 F. 623, 95 C. C. A. 151; Ladd & Tilton Bank v. Lewis A. Hicks Co., 218 F. 310, 134 C. C. A. 106; Bouldin v. Alto Mines Co. (C. C. A.) 299 F. 301; United States v. McGovern (C. C. A.) 299 F.302.

The judgment of the court below is therefore affirmed.