Gulf, C. & S. F. Ry. Co. v. Clement Grain Co.

268 F. 535, 1920 U.S. App. LEXIS 2346

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 16, 1920
• Docket: No. 3580
• Status: Published

Opinion

BRYAN, Circuit Judge.

Plaintiff in error railway company sued defendants in error to recover certain switching charges. There was a general denial and certain affirmative pleas. A jury was waived by written stipulation, and the court found for defendants in error.

The finding of the court in a trial without a jury may he either general or special, and has the same effect as a verdict. R. S. § 649 (Comp. St. § 1587); U. S. v. U. S. Fidelity Co., 236 U. S. 512, 35 Sup. Ct. 298, 59 L. Ed. 696. In this instance the finding was general. No special finding was asked; and none was made.

A finding, whether general or special, cannot be reviewed on writ of error, in the absence of exception to a ruling made in the progress of the trial. R. S. § 700 (Comp. St. § 1668); St. Louis v. Western Union Telegraph Co., 166 U. S. 388, 17 Sup. Ct. 608, 41 L. Ed. 1044; Wilson v. Merchants’ Loan & Trust Co., 183 U. S. 121, 22 Sup. Ct. 55, 46 L. Ed. 113. No exception was taken to any ruling of the court.

The judgment is therefore affirmed.