The case of
Folsom v. Insurance
Company, 18 Wall. 237, and the numerous cases there
cited, p. 244 [argument of counsel -- omitted], affirmed, and the
doctrine again declared that where a jury is waived and the issues
of fact submitted to the circuit court, under the Act of March 3,
1865 (quoted in the report of the case cited, p.
85 U. S. 238),
this Court will not review the finding of the court where it is
general and unaccompanied by any authorized statement of facts, and
that in the case of such general finding,
"nothing is open to review by the losing party under a writ of
error except the rulings of the circuit court in the progress of
the trial, and that the phrase 'rulings of the court in the
progress of the trial' does not include the general finding of the
circuit court nor the conclusions of the circuit court embodied in
such general finding. "
Page 86 U. S. 66
Error to the Circuit Court for the Eastern District of Virginia,
in which court Littleton Omohundro, a citizen of Ohio, sued Richard
Cooper, a citizen of Virginia, executor of Silas Omohundro (which
said Silas was in his lifetime a citizen of the same state), to
recover certain advances which the plaintiff, the said Littleton,
who was the son of the said Silas, the defendant's testator, had
made (as the evidence tended to show, though this fact was not in
any way shown by the pleadings), during the rebellion, and while
funds could not be transmitted from Virginia to Ohio for the said
Silas, his father.
The said Silas, the decedent, though living in Virginia, had
been building a house in Ohio for his wife (or reputed wife) and
children, who resided there and where he was in the habit of
visiting them till the rebellion broke out. He died in 1864.
The court gave judgment for the plaintiff, and the defendant
brought the case here on error.
MR. JUSTICE CLIFFORD stated the case, and delivered the opinion
of the Court.
Advances were made by the plaintiff to Silas Omohundro in the
sum of $4,390, as alleged in the bill of particulars filed in the
case. None of that amount, as the plaintiff alleges, was ever paid
by the decedent, and the defendant, as his executor, having
neglected and refused to pay the same, the plaintiff brought an
action of assumpsit against the defendant, as such executor, to
recover the amount. Service being made the defendant ultimately
appeared and pleaded the general issue. Both parties being present,
they waived a jury and agreed that the issues of fact should be
tried and determined by the court without the intervention of a
jury.
Subsequently the defendant filed a special plea that the
plaintiff ought not to have and maintain his action aforesaid
Page 86 U. S. 67
against him because, he says, that at the time of making the
supposed contract and promise in the declaration mentioned, war
existed between the United States and the Confederate states, and
that the plaintiff and the testator of the defendant were alien
enemies, concluding with a verification and a prayer for judgment.
Responsive to that special plea, the plaintiff filed a replication
denying the allegations thereof, and prayed that the same might be
inquired of by the country.
Three depositions were introduced by the plaintiff to sustain
the issue on his part, and he also introduced certain receipts,
four of which were signed by the reputed wife of the decedent and
two by the contractor employed to build a dwelling house for his
reputed wife and children. Taken together, these proofs tend
strongly to prove that the decedent was indebted to the plaintiff
in the sum of $4,390, as found by the circuit court.
Countervailing evidence was introduced by the defendant
consisting of five depositions, a deed from the decedent to his
reputed wife for her life, remainder to her six children, and the
will of the testator with the probate thereof, the Virginia
ordinance of secession, and an ordinance of the state requiring the
governor to call volunteers into the service of the state to repel
invasion and to protect the citizens of the state in the emergency,
and ten other ordinances passed by that state during the rebellion.
All of the testimony introduced on the one side and the other being
set forth at large in what is denominated in the transcript a bill
of exceptions, filling thirty-seven pages of the transcript.
None of the evidence introduced by the plaintiff was objected to
at the time, nor is any part of it made the subject of an
exception, nor was any request made by the defendant at the close
of the plaintiff's case for a ruling adverse to the right of the
plaintiff to recover. On the contrary, the defendant immediately
proceeded to introduce evidence responsive to that introduced by
the plaintiff, and evidence to show that the decedent never
promised the plaintiff as alleged in the declaration, and at the
close of his evidence
Page 86 U. S. 68
requested the circuit court to decide substantially as
follows:
1st. That the alleged contract, inasmuch as war existed at the
time between the United States and the Confederate states, was
illegal and void.
2d. That the alleged contract, if not actually void, was an
executory agreement, and as such was terminated by the war.
3d. That the alleged contract, if otherwise valid, was too
indefinite to be executed.
4th. That no interest is recoverable during the war or any
portion of the war upon a contract between alien enemies.
5th. That upon the whole case, judgment should be for the
defendant.
But the court refused so to decide, and ruled against the
defendant upon each of the propositions, and the defendant excepted
to the said ruling.
Under those circumstances, the record states that
"the court does find the facts in the case for the plaintiff,
and gives judgment that the plaintiff recover of the defendant the
sum of $4,391, with interest from the 24th day of June, 1864, at
the rate of six percent per annum, and costs of suit."
Judgment having been rendered, the defendant moved the court to
arrest the same and grant him a new trial, alleging for cause that
the judgment was contrary to the evidence and the law, and in
support of the motion assigned for error the same causes as those
stated in the requests submitted before judgment, but the court
overruled the motion and the defendant excepted to the ruling.
Such is the state of the record which is brought here by the
defendant in the subordinate court. Since the cause was removed
here, the losing party assigns a single cause of error, which is
that the circuit court erred in refusing to rule in favor of the
defendant upon the questions of law as requested and in ruling to
the contrary thereof.
Much discussion of the motion for new trial is unnecessary, as
the motion is one addressed to the discretion of the
Page 86 U. S. 69
court, in respect to which the ruling of the circuit court
cannot be reviewed here upon a writ of error nor in any other mode.
Nor can it make any difference in this case that the motion for new
trial was blended with one to arrest the judgment, as such a motion
ought regularly to be made before the judgment is entered. Motions
in arrest at common law were made after verdict and before
judgment, and it is quite clear that the refusal to grant such a
motion after judgment, in case where the finding of the circuit
court is general, cannot be regarded as a ruling made in the
progress of the trial.
Nothing remains to be considered except the requests for rulings
presented by the defendant before judgment.
Beyond all doubt, the only effect of the exception to the
refusal of the court to grant the fifth request, if the exception
is admitted to be well taken, will be to require the Court here to
review the finding of the circuit court in a case where the finding
is general, and where it is unaccompanied by any authorized
statement of the facts, which it is plain this Court cannot do, for
the reasons given in the opinion of the court in the case of
Insurance Company v. Folsom, decided at the present term.
* Our decision in
that case was that in a case where issues of fact are submitted to
the circuit court and the finding is general, nothing is open to
review by the losing party under a writ of error except the rulings
of the circuit court in the progress of the trial, and that the
phrase "rulings of the court in the progress of the trial" does not
include the general finding of the circuit court nor the
conclusions of the circuit court embodied in such general finding,
which certainly disposes of the exceptions to the refusals of the
circuit court to decide and rule as requested in the first four
prayers presented by the defendant, as it is clear that those
exceptions seek to review certain conclusions of the circuit court
which are necessarily embodied in the general finding of the
circuit court.
Page 86 U. S. 70
Opposed to that, it may be suggested that the judgment shows
that interest is allowed, but the answer to that is that neither
the finding nor the judgment shows anything in regard to the
principal except the amount awarded to the plaintiff. Nothing can
be inferred from the declaration to support the defense of
illegality, as it contains only the money counts, nor from the bill
of particulars filed in the case, as it gives only the dates of the
payments and makes no reference to the date of the contract.
Support to the defense is entirely wanting without resorting to the
evidence as reported in the bill of exceptions, which includes all
that was introduced on both sides and is unaccompanied by any
special finding of the facts. Issues of fact cannot be found by
this Court, as the Act of Congress requires that such issues shall
be found by the circuit court. Consequently there can be no review
of the finding of the circuit court where the finding is general,
nor of the conclusions of the circuit court embodied in the general
finding.
Judgment affirmed.
*
85 U. S. 18 Wall.
237.