Ham v. Edgell

106 F. 820, 45 C.C.A. 661, 1901 U.S. App. LEXIS 3627

Opinion

PER CURIAM.

Some questions are presented as to the sufficiency and regularity of the writ of error in this case, and as to the sufficiency of the bond given, but it is not necessary to pass upon them, because we are constrained to hold as heretofore in Branch v. Manufacturing Co., 4 C. C. A. 54, 53 Fed. 849.

There is in the record no verdict of a jury. It is manifest that the case was tried without a jury. There is nothing in the record from which it affirmatively appears, or can reasonably be assumed, that the parties or their attorneys of record filed with the clerk a stipulation in writing waiving a jury. Rev. tít. § 049. It is well settled that in actions at law in the circuit courts of the United States, when a trial is had without a jury, if a written stipulation waiving a jury is not in some way affirmatively shown in the record, none of the questions decided at the trial can be re-examined on writ of error. Bond v. Dustin, 112 U. S. 604, 5 Sup. Ct. 296, 28 L. Ed. 835; County of Madison v. Warren, 106 U. S. 622, 2 Sup. Ct. 86, 27 L. Ed. 311; Campbell v. Boyreau, 21 How. 223, 16 L. Ed. 96, and other cases cited in Bond v. Dustin. For the foregoing reasons, and without passing on any of the questions presented by the assignments of error, the judgment is affirmed.