1. In a case at law tried in the district court without a jury
under Rev.Stats. §§ 649, 700, rulings made in the progress of the
trial on questions of law, such as rulings admitting or rejecting
evidence, denying a motion for a nonsuit, or referring the case to
a special master to take further testimony and state an account are
reviewable, and the right to review them is not lost because of the
fact
Page 279 U. S. 793
that a general finding or special findings sufficient apparently
to support the judgment are thereafter made by the court. P.
279 U. S.
795.
2. A motion for a nonsuit at the close of such a trial, upon the
ground that the evidence, with every inference of fact that may be
drawn from it in favor of the plaintiff, is insufficient to sustain
a judgment in his favor presents a question of law reviewable by
the appellate court. P.
279 U. S.
795.
3. Where the Circuit court of appeals considered only a part of
the assignments of error, treating them as all that were in the
case, it is not to be assumed that the others were deemed to have
been waived under its rules through not having been specified in
the brief where there is nothing in that court's opinion or in the
record referring to such a waiver. P.
279 U. S.
796.
4. This Court cannot go out of the record to examine a copy of a
brief used in the Circuit Court of Appeal for the purpose of
determining whether assignments of error in that court were deemed
to have been waived by a failure to specify them in the brief. P.
279 U. S.
796.
5. Where a failure of the circuit court of appeals to consider
assignments of error is unexplained and apparently erroneous, the
case will be remanded with instructions to consider them and,
unless they have been waived, take further proceedings in the case.
P.
279 U. S.
796.
27 F.2d 521 reversed.
Certiorari, 278 U.S. 596, to review a judgment of the circuit
court of appeals affirming a recovery in the district Court in an
action on an indemnity bond.
MR. JUSTICE SANFORD delivered the opinion of the Court.
The respondent brought an action at law against the petitioner
in a superior court of California, to recover upon an indemnity
bond. The case was removed to the federal
Page 279 U. S. 794
district court, and was there tried by the court, without the
intervention of a jury, which was duly waived by a written
stipulation of the parties. R.S. § 649. The district court made
special findings of fact on which it gave judgment against the
defendant. Upon a writ of error, this judgment was affirmed by the
circuit court of appeals. 27 F.2d 521. The case is here for limited
review on the question whether that court erred in failing to
review the rulings of the district court in the progress of the
trial, excepted to at the time and duly presented by a bill of
exceptions. 278 U.S. 596.
In the progress of the trial, the court made various rulings
adverse to the defendant in respect to the admission and exclusion
of evidence; denied a motion for nonsuit made by the defendant at
the close of the evidence, based on the asserted lack of evidence
as to various matters essential to a recovery on the bond, and
referred the case to a special master to take further testimony and
state an account. To each of these rulings the defendant excepted
at the time, and all of these exceptions were duly presented by a
bill of exceptions.
After the coming in of the report of the special master, the
court made special findings of fact, upon which it entered judgment
against the defendant. There was no exception to these findings,
nor any request for different findings.
In connection with the writ of error, the defendant filed
twenty-one assignments of error. Some of these were directed to
special findings made by the court, and others were specifically
directed to the rulings of the court on the admission and rejection
of evidence, the denial of the motion for nonsuit, and the
reference to the special master.
Despite the fact that all of these assignments of error appeared
in the record, the circuit court of appeals stated in its opinion
that "all the assignments of error are based
Page 279 U. S. 795
upon the insufficiency of the testimony to support the special
findings," and, after stating that, on the record presented, the
court could not consider the sufficiency of the testimony to
support the special findings, and that it was not contended that
the findings were in themselves insufficient to support the
judgment, affirmed the judgment of the district court without
referring to or considering the assignments of error relating to
the rulings of the court in the progress of the trial.
1. Upon the record in this case, the action of the circuit court
of appeals appears to have been erroneous. Section 700, Rev.Stats.,
specifically provides that, when an issue of fact in a civil cause
is found and determined by the court without the intervention of a
jury, according to § 649,
"the rulings of the court in the progress of the trial of the
cause, if excepted to at the time and duly presented by a bill of
exceptions, may be reviewed."
The right granted by the statute to a review of the rulings made
during the progress of the trial is not lost because of the fact
that a general finding or special findings sufficient apparently to
support the judgment are thereafter made by the court.
See
Fleischmann Const. Co. v. United States, 270 U.
S. 349,
270 U. S.
355-356;
Lewellyn v. Elec. Reduction Co.,
275 U. S. 243,
275 U. S. 248.
Here, the rulings of the court to which the defendant excepted
and as to which it assigned errors plainly related to matters of
law. The motion for nonsuit, which corresponded to a motion for a
directed verdict, presented the question whether the evidence, with
every inference of fact that might be drawn from it in favor of the
plaintiff, was sufficient in matter of law to sustain a judgment.
See Central Transp. Co. v. Pullman's Palace Car Co.,
139 U. S. 24,
139 U. S. 38.
This presented a question of law which is reviewable, just as a
motion by the plaintiff at the close of a trial without the
intervention of a jury, for a declaration
Page 279 U. S. 796
that he is entitled to judgment presents a question of law which
is reviewable by the appellate court.
St. Louis v. Western
Union Telegraph Co., 148 U. S. 92,
148 U. S. 96;
Bank of Waterproof v. Fidelity & Deposit Co., 299 F.
478, 482;
Griffin v. Thompson, 10 F.2d 127, 128;
Sartoris v. Utah Construction Co., 21 F.2d 1, 2. The
statement made in
Humphreys v. Third National Bank, 75 F.
852, 855, quoted in
Fleischmann Co. v. United States,
supra, p.
270 U. S. 356,
on which the plaintiff relies, has plainly no reference to the
review of a ruling made in the progress of a trial as to such a
question of law, but relates merely to the mode of presenting for
review the conclusions of law involved in special findings.
2. It is urged that the action of the circuit court of appeals
in stating that the assignments of error related only to the
special findings and in failing to consider the assignments
relating to the rulings of the court during the trial, is to be
explained by the fact that all the assignments of error except
those relating to the special findings had been waived, under the
rules of the court, by the failure of the defendant to set them
forth in the specifications of error contained in its brief. And,
for the purpose of determining this question, we are asked to
examine a copy of the defendant's brief in the circuit court of
appeals which has been tendered as an exhibit to the plaintiff's
brief in this Court. This is not a part of the record, and cannot
be looked to by us. The record, to whose consideration we are
limited, discloses no waiver of any of the assignments of error
that had been filed. Nor does the court, in its opinion, refer to
any waiver as a reason for not considering the assignments.
3. Since, on the face of the record, the failure of the circuit
court of appeals to consider the assignments of error relating to
rulings at the hearing is unexplained and its action appears to
have been erroneous, its judgment must be reversed. And the case
will be remanded to that
Page 279 U. S. 797
court with instructions to consider the several assignments of
error relating to the rulings of the trial court in the progress of
the trial and,unless they have been waived, take further
proceedings in regard thereto.
See Krauss Bros. Co. v.
Mellon, 276 U. S. 386,
276 U. S. 394;
Buzynski v. Luckenbach S.S. Co., 277 U.
S. 226,
277 U. S.
228.
Reversed and remanded.