Northern Idaho & Montana Power Co. v. A. L. Jordan Lumber Co.

Ninth Circuit

Northern Idaho & Montana Power Co. v. A. L. Jordan Lumber Co.

262 F. 765, 1920 U.S. App. LEXIS 1602

Court of Appeals for the Ninth Circuit·Decided February 2, 1920·No. No. 3382·Published·Cited by 7 cases

Opinion

GILBERT, Circuit Judge.

The plaintiff in error seeks to reverse the judgment of the court below, rendered against it in a law action, in which a jury was waived and the cause was tried before the court. The plaintiff in error states in its brief that, while the writ challenges certain findings of the court for the reason that they are not supported by the evidence, it is mainly based on the assignment that on the facts found by the court, supplemented by the undisputed evidence, the judgment should have been for the defendant.

[1] On the trial no exceptions were talcen to any ruling of the court, and no request was made for special findings, or for a finding in favor of the defendant in the action. The plaintiff in error refers to the opinion of the court below as containing special findings of fact, but the opinion cannot be resorted to for that purpose. Dickinson v. Planters’ Bank, 16 Wall. 257, 21 L. Ed. 278; British Queen Min. Co. v. Baker Silver Min. Co., 139 U. S. 222, 11 Sup. Ct. 523, 35 L. Ed. 147; Saltonstall v. Birtwell, 150 U. S. 417, 14 Sup. Ct. 169, 37 L. Ed. 1128; York v. Washburn, 129 Fed. 564, 64 C. C. A. 132; Hayden v. Ogden Savings Bank, 158 Fed. 91, 85 C. C. A. 558; United States v. Sioux City Stock Yards Co., 167 Fed. 127, 92 C. C. A. 518; Gibson v. Luther, 196 Fed. 203, 116 C. C. A. 35.

[2] In the absence of a special finding, the judgment must be affirmed, unless the complaint fails to state a cause of action, or the bill of exceptions presents some erroneous ruling of the court in the progress of the trial. Norris v. Jackson, 9 Wall. 125, 19 L. Ed. 608. There being in the present case no ruling of the trial court, and no special finding of fact, but only a general finding, the latter must be accepted as conclusive, and this court can go no further than to affirm the judgment. Lehnen v. Dickson, 148 U. S. 71, 13 Sup. Ct. 481, 37 L. Ed. 373; Dunsmuir v. Scott, 217 Fed. 200, 133 C. C. A. 194; Pennsylvania Casualty Co. v. Whiteway, 210 Fed. 782, 127 C. C. A. 332.

The judgment is affirmed.

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GILBERT, Circuit Judge.

The plaintiff in error seeks to reverse the judgment of the court below, rendered against it in a law action, in which a jury was waived and the cause was tried before the court. The plaintiff in error states in its brief that, while the writ challenges certain findings of the court for the reason that they are not supported by the evidence, it is mainly based on the assignment that on the facts found by the court, supplemented by the undisputed evidence, the judgment should have been for the defendant.

[1] On the trial no exceptions were talcen to any ruling of the court, and no request was made for special findings, or for a finding in favor of the defendant in the action. The plaintiff in error refers to the opinion of the court below as containing special findings of fact, but the opinion cannot be resorted to for that purpose. Dickinson v. Planters’ Bank, 16 Wall. 257, 21 L. Ed. 278; British Queen Min. Co. v. Baker Silver Min. Co., 139 U. S. 222, 11 Sup. Ct. 523, 35 L. Ed. 147; Saltonstall v. Birtwell, 150 U. S. 417, 14 Sup. Ct. 169, 37 L. Ed. 1128; York v. Washburn, 129 Fed. 564, 64 C. C. A. 132; Hayden v. Ogden Savings Bank, 158 Fed. 91, 85 C. C. A. 558; United States v. Sioux City Stock Yards Co., 167 Fed. 127, 92 C. C. A. 518; Gibson v. Luther, 196 Fed. 203, 116 C. C. A. 35.

[2] In the absence of a special finding, the judgment must be affirmed, unless the complaint fails to state a cause of action, or the bill of exceptions presents some erroneous ruling of the court in the progress of the trial. Norris v. Jackson, 9 Wall. 125, 19 L. Ed. 608. There being in the present case no ruling of the trial court, and no special finding of fact, but only a general finding, the latter must be accepted as conclusive, and this court can go no further than to affirm the judgment. Lehnen v. Dickson, 148 U. S. 71, 13 Sup. Ct. 481, 37 L. Ed. 373; Dunsmuir v. Scott, 217 Fed. 200, 133 C. C. A. 194; Pennsylvania Casualty Co. v. Whiteway, 210 Fed. 782, 127 C. C. A. 332.

The judgment is affirmed.

Northern Idaho & Montana Power Co. v. A. L. Jordan Lumber Co., 262 F. 765, 1920 U.S. App. LEXIS 1602 (9th Cir. 1920).

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