1. Judgment in a law case tried without a jury pursuant to
Rev.Stats. §§ 649 and 700 is not reviewable where no special
findings of fact were made, where no rulings in the progress of the
trial were excepted to at the time and duly presented by bill of
exceptions, and where the assignments of error
Page 288 U. S. 416
present no substantial question on the pleadings, but are
directed to the reasons set forth in an opinion of the judge for
ordering the judgment.
Fleischmann Co. v. United States,
270 U. S. 349. P.
288 U. S.
418.
2. Affirmance by this Court of a judgment of the Circuit Court
of Appeals upon the ground that no substantial question was
presented to that court by the assignments of error does not imply
approval of that court's decision of other questions not properly
before it. P.
288 U. S.
419.
60 F.2d 97, 61
id. 365, affirmed.
Certiorari, 287 U.S. 596, to review the affirmance of a judgment
against the present petitioner in an action to recover from two
former collectors of internal revenue an alleged overpayment of
income taxes.
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
Petitioner sued respondents in the United States District Court
for Massachusetts to recover alleged overpayment of taxes. After
waiver of trial by jury, the judge heard the cause upon the
pleadings and evidence, and gave judgment for the respondents. The
reasons therefor were stated in an opinion dealing generally with
the issues of law and fact. The Circuit Court of Appeals affirmed
this judgment and undertook to support its action by an opinion, 60
F.2d 97. A duly authenticated bill of exceptions setting forth the
evidence and the proceedings at the trial is in the record, also
appropriate assignments of
Page 288 U. S. 417
error. No assignment makes substantial claim of error based upon
the pleadings alone.
The Circuit Court of Appeals rightly found:
"There was a waiver of a jury trial, and the case was heard by
the judge without a jury. A request for findings of fact and
rulings of law was made by the plaintiff, but no special findings
were made, nor were the requested rulings of law either made or
refused, nor were any exceptions to a refusal to rule as requested
taken 'in the course of the trial.' So far as any rulings of law
were made 'in the course of the trial,' with one exception, they
were in favor of the plaintiff, and, though an exception was
allowed in this instance, it is not relied upon in the assignments
of error. . . . The findings of fact are general, and no rulings of
the court were excepted to 'during the course of the trial' which
are relied on. Exceptions, following an order of judgment, to
alleged rulings in a written opinion of the judge assigning reasons
for ordering a judgment for either party are not rulings in the
course of the trial. . . . Each of the assignments of error in this
case relates either to matters of fact or to conclusions of law
embodied in the opinion. These are not open to review, as there
were no special findings of fact, and no exceptions to rulings on
matters of law were taken during the course of the trial and duly
preserved by a bill of exceptions, and no questions of law
favorable to the plaintiff are raised on the pleadings."
Notwithstanding the condition of the record, the appellate court
proceeded to discuss sundry questions beyond the pleadings, not
pertinent because not properly raised, and decided them against the
petitioner. The challenged judgment was rightly affirmed, but this
should have been done upon the ground that the assignments of error
presented for consideration no substantial question of law or
fact.
Page 288 U. S. 418
The Revised Statutes, as amended, provide:
"Sec. 649. Issues of fact in civil cases in any circuit
[district] court may be tried and determined by the court, without
the intervention of a jury, whenever the parties, or their
attorneys of record, file with the clerk a stipulation in writing
waiving a jury. The finding of the court upon the facts, which may
be either general or special, shall have the same effect as the
verdict of a jury."
U.S.C. Title 28, § 773.
"Sect. 700. When an issue of fact in any civil cause in a
circuit [district] court is tried and determined by the court
without the intervention of a jury, according to section six
hundred and forty-nine, 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 by the Supreme
Court [Circuit Court of Appeals] upon a writ of error or upon
appeal, and when the finding is special, the review may extend to
the determination of the sufficiency of the facts found to support
the judgment."
U.S.C. Title 28, § 875.
In
Fleischmann Co. v. United States, 270 U.
S. 349,
270 U. S.
355-357, this Court construed and applied the above
sections, and the doctrine there approved is decisive of the
present cause. Through Mr. Justice Sanford, we said:
"The opinion of the trial judge, dealing generally with the
issues of law and fact and giving the reasons for his conclusion,
is not a special finding of facts within the meaning of the
statute. . . . And it is settled by repeated decisions that, in the
absence of special findings, the general finding of the court is
conclusive upon all matters of fact, and prevents any inquiry into
the conclusions of law embodied therein except insofar as the
rulings during the progress of the trial were excepted to and duly
preserved by bill of exceptions, as required by the statute. . . .
To obtain a review by an appellate court of the conclusions of law,
a party must either obtain from the
Page 288 U. S. 419
trial court special findings which raise the legal propositions,
or present the propositions of law to the court and obtain a ruling
on them. . . ."
"These rules necessarily exclude from our consideration all the
questions presented by the assignment of errors except those
arising on the pleadings. All the others relate either to matters
of fact or to conclusions of law embodied in the general finding.
These are not open to review, as there were no special findings of
fact and no exceptions to the rulings on matters of law were taken
during the progress of the trial or duly preserved by a bill of
exceptions. The defendants offered no exceptions to the rulings of
the court until after the writ of error had issued, transferring
jurisdiction of the case to the Court of Appeals. And the recitals
in the subsequent 'bills of exceptions' that the exceptions, then
for the first time presented, were to be taken as made before the
entry of the judgment, are nugatory. A bill of exceptions is not
valid as to any matter which was not excepted to at the trial. . .
. And it cannot incorporate into the record
nunc pro tunc
as of the time when an exception should have been taken, one which
in fact was not then taken. . . ."
"The statute however, relates only to those rulings of law which
are made in the course of the trial, and, by its terms, has no
application to the preliminary rulings of the district judge made,
in the exercise of his general authority, before the issues are
submitted to him for hearing under the statutory stipulation. Such
rulings on the pleadings and the sufficiency of the complaint are
therefore subject to review as in any other case, independently of
the statute."
And see Wilson v. Merchants' Loan & Trust Co.,
183 U. S. 121,
183 U. S. 127;
Martinton v. Fairbanks, 112 U. S. 670.
As the assignments of error presented no substantial point based
upon the pleadings, and the discussion of the court related to
points not properly before it, affirmance
Page 288 U. S. 420
of the judgment by us does not indicate approval of what was
said in respect of those points.
Affirmed.