KEBRILL ,. FLOYD.
(Cfnm.ft OouTt of Appeals, FW8t Oircuit. .TUB 80, 18111.)
APPBJ.L-J'tJBISDIOTIoN......;Bn.L 0 .. ExCBP'I'IONII-W.A.ITlIL A jury was waived, and the cause tried to the court, which
made ll.ndingll of fact, and returned a "verdict" thereon. Afterwards a motion "to set aside the verdict on the ground that there was no evidence to support the same" was denied. The cent then allowed a biIl of exceptions to the findings and rulings at the trial, on the grounds that there was DO evidence to support the findings, and that, upon the findin/l"Ii,defendant was not liable. Held, that the question whether defendant had right to except to the suftlciencyof the evidence to support the findings by failing- to ask a ruling thereon before the court announced its conclusionl\ did 'not affect the jUrisdiction of the appellate court, but merely raised the question ,whetbllrdefendant was not limited to a review of the sufticiencyof findings to port the judgment.
I. 'BAXli-DnIMJSSAL-BILL OP EXCEPTIONs-CERTIORARI. Where, on a writ of error to the circuit court of appeals the question of the sufI ficiency of the evidence to support the findings of fact made by the court in lieu 01 a jury is raised, the fact that the bill of exceptions does not embody all the evi denceis no ground for dismissing the appeal; the proper remedy is by certiorari for diminution of the record, under rule 18 of that court.
In Circuit Court of the United States for the District of :M:assacllusetts. Actionby Byron B. Floyd against Ezra F. Merrill for fraudulent represen.'4\tions. Judgment for plaintiff. Defendant brings error. Heard on motion to dismiss the writ of error. Denied. WilliarriA. Macleod and Robert D. Trash. for plaintiff in error. Benjamin F. Butler and T. Henry Pearse, for defendant in error. Before' 'GRAY, Circuit Justice, and PUTNAM and NELSON, Circuit Judges'.
GRAY, Circuit Justice. The original action was brought on September 6,,1889, by Floyd against Merrill, for fraudulent representations as to the condition of a corporation in which both parties owned shares, whereby the defendant inuuced the plaintiff to sell his shares to the defendant for much less than their value. The answer denied all the allegations Of the declaration. On February 2, 1892, the counsel for both parties signed and filed a stipulation in writing in these words:
"It is agreed by counsel for plaintiff and defendant in the above-entitled case that the same be marked, 'Jury waived' tentatively."
The case was thereupon tried by ALDRICH, J., who, on March 10th, filed th,e following" findings of fact and verdict:"
''',rhis was a trial before the llourt, the partiell having waived a jury trial. Having heard l\nd considered all the evidence submitted, and the arguments as well, I find that the defelldant had peculiar knOWledge of the condition of the corpotatiolJand its affairs and the value of the stock; that the plaintiff was comparatively ignorant of the situation, and the defendant knew this; that the defendant, having such knowledge, sought the plaintiff for the purhimself of his interest in the corporation, and in the nepose of following studiously and artfully concealed facts as to value. and artfully misrl'presented the true condition, and, having deceived the plaintiff by such ml'ans, secured his stock for the silm of one thousand
dollars, when In fact it was worth four thousand dollars. My verdict, therefore. is that the plaintiff recQ,ver Iliff.erence between the sum paid by the defendant and the value of the stock thus obtained, which is three thousand dollars, dat: of writ."
On Apri116, the judge denieda.motion "to set aside the verdict on the ground that there i,$, no to support the ,de,. fendl1nMherGupon tendered a bill of exceptions to the findings and rulings the ground thl\t there was no evidence to support the oHaet, as well as upon the ground those findings of fact the, defendant was not 'liable; and this bill of ex,ceptions was allowed and, filed. On the sa1T1e day, a motion by the plaintiff that "judgment tbevel'dict inthis, CaUse non ob8tante the exceptions" was granted; and judgmentw8s entered for the plaintiff for the sum of 33,458 and costs. On April 26th the defendant sued "out this writ of erl'or.,Therdefendant in ,error has now moved to dismiss the writ of error,.becausecIloexceptions were taken at the trial, but, ouly to the denial ora lllotiQD for a new trial; because the record does not set out all the evidence introduced 'below; 'and because there is no appealable question of law or. fact set forth in the record, upon which ,a writ of error could issue. 'It'is quite clear that none of the grounds suggested will justify a dismissal of the writ of error,. whatever effect they may have by way of liinitmg the argument on the merits. The exceptions taken below were nono the denial of the motion for a new trial, hut to the previous conclusions oCthe (',()Urt, and this upon two grounds,-that there was no evidence t08upport the findings of fact, and that the findings of fact would not support ,a judgment for the plaintiff. , If there is arty material omission in the record, the proper remedy is by motion for a certio'l'ari, under rule 18 (47 Fed. Rep. viii.) of this court. When the case shall be argued on the merits, the attention of counsel may well be dii'ected to the follOWing questions:' Jilir8t. Whether a jury trial was duly waived, and, if 110t, Whether any question is open but the sufficiency ofthe declaration to support the judgment. See Rev. St. §§ 649, 7QO; Bond v. Dustin, 112 U. S. 604, 5 Sup. Ct. Rep. 296; Andea v. Slaul3on, 130U. S. 435, 9 Sup. Ct. 573; Roger8 v. U. S., 141 U. Sl 548, 12 Stip. Ct. Rep. 91. Second. Whether,if a jury trial was duly waived, thedefehdant, not having requested the jUdge, before he announced his conClusions, to rule upon the sUfficieh(,lYi?r effect of the evidence. could afterwards ,take the exception that there was no evidence to support the findings, or whether ht1' must belhnited to the question whether the facts found suppOrt the judgment. See NorriB v.Jackson, 9 Wall. 125; Eoogher v. Insurance 00.; 103 U;S.90;Lnnd Imp. Co. v. Bradbury, 132, U. S. 5()9, 515, 10 Sup. Ct. Rep. 177; Hathaway v. Bank, 134 491, '10 Stip. Ct. ReP. 608; The $. A. Packer" 140 U. 11 Sup. ,Ct. Rep. , ButthOlle questions, as well as all the assigned for the motion to dismiss, affect only the tian of the merits of the case, ·and have no tendency to show that this court has no jurisdicti?n to make that Motion to dis". niiss the writ of :. ; .. '.-',\"
IWCLAUt ,. PIEBCB,
SINCLAIR 11. PIERCE
(Cir.euU Oou71, D. Ma8800hIIUetti. Hay 5, 1892.)
REMOTAL OP CAUSES+AtM'lIORITT OP STATE AND FEDERAL COURTS.
try, 11 Sup. Ct. Rep. 806, 138 U. S: 298, followed·
Questions of fact arising on a petition for removal are for the federal court atone, and the state court has no jurisdiction to determine them. Raf.liroad Co. v. It seems from Frmich v. Hft!l, 22 Wall. 250, that a federal circuit court bas jurisdiction of a bill to enjoin tbe prosecution of a case in a state court, on tbe ground that it has heen removed to the federal court..
.. SAME-I:NolUNCTION TO STATE COURT-JURISOICTION.
An action for damages was brought In a state court against an umy officer and two other persona for. wrongfully arresting and detaining an alleged deserter. The other defendanta were defaUlted, and the officer Illed a petition and bond for removal on the ground that the case arose under the laws of the United States. The atate court held the petition insuftlcient, and waa about to proceed with the trial, when the officer applied to the federal court to enjoin further proceedings. Held that, as the right of removal by the defendant after default of his codefend· ants was extremely doubtful, (Putnmn v. Ingrtlhnm, 114 U. S. 57,5 Sup. Ct. Rep. Hltx v. Cltspar,81 Fed. Rep. 499,) and as the question presented was only one of the Inconvenience and expense of double litill'ation, the Injunction should be denied without prejudice to a renewal of the application, in the expectation tbat, OD proper representations, the state court would swy proceeding. unt.il a decillion could be had on a motion t.o remand.
In Equity. On application for an injunction restraining the prosecution of a suit in a state court. Refused. An action of tort for an assault and false imprisonment at common law was commenced by writ dated the5th day of November, A. D. 1891, and issued from the superior court in and for the county of l\1iddlesex in the commonwealth of Massachusetts, in which writ one of the respondents, Charles M. Pierce, of Lowell, in said Massachusetts, is plaintiff, and the other respondent, Jerome F. Manning, is counsel for said Pierce, Peck and William S. Sampson, both of !laid Massachuand George setts, and the complainant, William Sinclair, of the state of Ohio, who is in the military service olthe United States. and stationed as commander at Ft. Warren, in Boston harbor, ami within the jurisdiction of this court, are defendants. The ad dllmnum of the writ is $25,000. The allegations of the plaintiff in the state court are that he was arrested as a deserter by said Peck, and taken to Ft. Warren, where he was imprisoned by said Sinclair for 20 days, at the end of which time, not being found to be a deserter, he was discharged; to all of which the said Peck and Sinclair were incited by said Sampson. The defi:mdants PE.'ck and Sampson were defaulted. The defendallt Sinclair alone duly filed in the state court a petition for the removal of the case to the circuit court, on the ground that his duties as com manlIer of the fort, tile orders of the secretary of state, the United States statutes, and the anny regulations compelled him to do whatever acts he hall done, and that the Ruit is of a civil nature,and arises under the constitution of the United States. The necessary bondha.l been duly filed in the state court, and a transcript of the of the record duly filed with the clerk of the circuit court. The state court did not deem the petition for rtlwuva! sufficient, and refused