80 U.S. 1

80 U.S. 1

80 U.S. 1

20 L.Ed. 556

13 Wall. 1


December Term, 1871


ERROR to the Circuit Court for the District of Louisiana, the case being this:


The act of Congress of March 3d, 1865,1 authorizing the Circuit Courts of the United States, on written stipulation of the parties or their attorneys filed, to try issues of fact in civil cases without the intervention of a jury, enacts that——


‘§ 4. The findings of the court upon the facts . . . shall have the same effect as the verdict of a jury.’


With this statute in force, Bethell sued Mathews in the court below on certain promissory notes. A written stipulation signed by the parties was filed, waiving a jury and submitting the cause for trial by the court. It was so tried, accordingly. Six bills of exception, all by the defendant, were taken to testimony offered by the plaintiff, and all overruled. On the 2d of May, 1870, for reasons orally assigned, the court, not having made any findings of fact, ordered ‘that judgment be entered in favor of the defendant,’ and it was so signed accordingly four days afterwards. On the 10th of June, thirty-nine days after the judgment was rendered, the counsel filed a ‘statement of facts proved in the case,’ which statement was signed by them. The present writ of error was taken to review the judgment given in the case; the record disclosing the proceedings as above mentioned.


Messrs. Miles Taylor and C. N. Morse, for the plaintiff in error, submitted the case on merits.

Mr. T. J. Durant, contra:


The facts or case should have been found by the court. The statute is imperative. A case agreed on by connsel after the judgment cannot possibly be intended as found by the court. At any rate the finding should precede the judgment.


There is, then, only a general finding in favor of the defendant, which must have the same effect as a similar finding of a jury. The case is thus presented to this court, as if on a writ of error to a judgment of the court rendered on a general verdict in favor of the defendant in error, and where there is no question arising on the pleadings, and where there was no ruling on the trial of the cause against the plaintiff in error. In such a case the judgment of the lower court must be affirmed as of course.



It has been often decided that a plaintiff in error cannot take advantage of rulings upon exceptions in his own favor, even if erroneous. Nor can a statement of facts signed by counsel be noticed upon error.2 In this case, then, not only was the statement so signed, but it does not appear to have been made and filed until after the judgment.


There is, therefore, no error in the record, or none of which we can take notice. The judgment of the Circuit Court for the District of Louisiana must be




13 Atat. at Large, 501.


Generes v. Bonnemer, 7 Wallace, 564; Avendano v. Gay, 8 Id. 376; Kearney v. Case, 12 Id. 276.