Swensen v. Cunningham

Fifth Circuit

Swensen v. Cunningham

157 F. 753, 85 C.C.A. 146, 1907 U.S. App. LEXIS 3935

Court of Appeals for the Fifth Circuit·Decided December 10, 1907·No. No. 1,699·Published·Cited by 1 cases

Opinion

PER CURIAM.

This action involves the correct boundaries of numerous sections of land in Motley county, Tex., and was by stipulation tried in the Circuit Court without a jury. After the admission of 57 pages of written and oral evidence and some 7 charts or maps of the surveys of the lands involved, the plaintiffs moved the court to find upon the whole evidence as a matter of law for the plaintiffs. This motion was overruled, and the court found generally for, and judgment was rendered for, the defendants. The plaintiffs below excepted, and on this writ assign the overruling of their motion as error warranting reversal.

For authority to thus change the writ of error into an appeal, counsel rely upon City of St. Louis v. Western Union Telegraph Company, 148 [754] U. S. 92, 13 Sup. Ct. 485, 37 L. Ed. 380, and United States Fidelity & Guaranty Company v. Board of County Commissioners of Woodson County, 145 Fed. 144, 76 C. C. A. 114. Neither of these cases support the plaintiff in error’s contention here, where the question is fully as much one of fact as of law. Under the exception taken, Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. 321, 28 L. Ed. 862, St. Louis v. Rutz, 138 U. S. 241, 11 Sup. Ct. 337, 34 L. Ed. 941, Runkle v. Burnham, 153 U. S. 216, 14 Sup. Ct. 837, 38 L. Ed. 694, and Beutell v. Magone, 157 U. S. 154, 15 Sup. Ct. 566, 39 L. Ed. 654, are authorities which warrant this court to so far look into the evidence as to ascertain whether there was sufficient, if credited, to support the judgment rendered; but we cannot go further into the facts.

The judgment of the Circuit Court is affirmed.

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PER CURIAM.

This action involves the correct boundaries of numerous sections of land in Motley county, Tex., and was by stipulation tried in the Circuit Court without a jury. After the admission of 57 pages of written and oral evidence and some 7 charts or maps of the surveys of the lands involved, the plaintiffs moved the court to find upon the whole evidence as a matter of law for the plaintiffs. This motion was overruled, and the court found generally for, and judgment was rendered for, the defendants. The plaintiffs below excepted, and on this writ assign the overruling of their motion as error warranting reversal.

For authority to thus change the writ of error into an appeal, counsel rely upon City of St. Louis v. Western Union Telegraph Company, 148 [754] U. S. 92, 13 Sup. Ct. 485, 37 L. Ed. 380, and United States Fidelity & Guaranty Company v. Board of County Commissioners of Woodson County, 145 Fed. 144, 76 C. C. A. 114. Neither of these cases support the plaintiff in error’s contention here, where the question is fully as much one of fact as of law. Under the exception taken, Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. 321, 28 L. Ed. 862, St. Louis v. Rutz, 138 U. S. 241, 11 Sup. Ct. 337, 34 L. Ed. 941, Runkle v. Burnham, 153 U. S. 216, 14 Sup. Ct. 837, 38 L. Ed. 694, and Beutell v. Magone, 157 U. S. 154, 15 Sup. Ct. 566, 39 L. Ed. 654, are authorities which warrant this court to so far look into the evidence as to ascertain whether there was sufficient, if credited, to support the judgment rendered; but we cannot go further into the facts.

The judgment of the Circuit Court is affirmed.

Swensen v. Cunningham, 157 F. 753, 85 C.C.A. 146, 1907 U.S. App. LEXIS 3935 (5th Cir. 1907).

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