foror,paY,itig- over totMimortgagee·. That fact, however, was aI-' reltdy) andi'untlisputedevideMe, i so, that we uhable"to'· see' how'the ' of this testimony could haveiu *ttl, Way tru.,sthct>rnpany,anderror without is no groul'ld'fori re'\Tersal.:The judgment below is' amrme'd;IWitlic()s!& ' .· : ' "
rr HALL v.HOUGHTON &UPPJ,fERCA1frILE 00, , (oo-Cttit Court of AppOOlil, Circuit. Februa.ry26, 18M.)
, ' .
, ' f15158, tbJit "the,appl.1(l1itfon for a new trial! DlUllt',if)e'made witbin three days the verdict'or'dec1slon was ,renderedt uMess unavoidably ',prevented/'; bas 'no application to a' motion ,to Set default.
S.APPEAL'-,.RmVIll!W-FJNDlNGSOF FACT. ", '.
St, '11Q11, whl¢llprovides that "there fillla11 be D,O 'reversal in a supreme"cbl1rtor In a clrC1Ht court upon's: writ of error ,* *, * (or any error hi"faet," governs the c1l'cultcouriof appeals &swell; and that court will, reView errors of lllw' only.
In Courlfu)he ThIS begu,n "by attachment by the Houghton & Upp Mercantile cpmpltny Dyment' & Lane, in which, a petition of interplj:!a:4ef ,;was bY Florence ',J. Hall, as trustee of the Compa:nr; and in. w;bich judgment" by default def:tult was set aside, went agairtiSt.the and at tlle the had Judgment" and Hall " ' ,, " brings error. , ;" in error. W. n. A. O.eru,ee, and Lee Cruce, for defendant in error. BeforeCALDWELLaIidSANBORN,Oircuit Judges, and THAY· ER, 'District "Judge .' , Judge. The controversy futhis case was over Bomeaattle in the Indian Territory. The Houghton & Upp idefendant in error, attached them as the Mercantile Company" property of their, debtors, Dyment & Lane, a partnership composed ofWaItel' Dyment, ThomasF. Lane, and Ridge Wheelock. Florence as trustee fori,Evans-Snider-Buel Company, the plaintiff in error, claiIned 'them under a prior mortgage ari interpleader. The case was ',set for trialIof the [saue between the attaching creditors and the intetpleadellfor March 30, 1892. On March 25, 1892, a ,judgment by default wa9rendered against the attaching creditor 'for want of an answer to the claim of the interpleader. At the same term,'and' on March3l, 1892, the court below,upon an affidavit of ments"set· aside the default,' and permitted the attaching ' ' creditor to8.nswer. It is contended that this action of the court was error, because section 5153, Mai1s:fleWs, Digest of thet Laws of Arkansas, which is
LACLEDE 1'. B. MANUF'GCO, fl. HARTFORD S.B: INSP. 4: INS. 00.
in force in the Indian Territory, provides that "the application for a. new trial must be made at the term the verdict 01' decision is rendered and (except in a case not materi.81 here) shall be within three days after the verdict OT decision was rendered unless unavoid· ablyp'1'evented." But thiS secti<:m had no application to the motion to set ai;dde"tpis default. Thl:j.t was not an application for a new trial. There been any trial, verdict, or decision., That was an apfor an opportunity to have a first trial. , It goes without saying tliat;;during the term at which it was rendered, this judgment by default was within the jurisdiction of, and under the control of, the <!otirtbelow, and it was a matter entirely within its discretion whether it would set it aside, and permit the in error to answer or not. It does not appear that there was any abuse of this discreUonin ,the action, ,taken by the eQurt below, and hence there is nothing here for this court to review. At the trial, a .jury was waived, and the parties agreed that the mortgage was valid, and the plaintiff in error entitled to recover the property, if ThOmas' F. Lane was a resident of the third judicial division of the Indian Territory when the mortgage was made, but that, if he was not, the mortgage was void, and the defendant in error entitled to judgment. Evidence was introduced upon this issue, and the court below found that Lane was not a resident of the Indian Territory, and this finding of fact is the other supposed error, complained of. There was considerable evidence in support of this finding, and section 1011 of' the Revised Statutes, which governs this court in this matter, provides' that "there shall be ,no reversal in a supreme court orin a circuit court upon a writ of error * * · for any error in fact." We could not, therefore, reverse this judgment if we were of the opinion that the court below had committed an error in this finding. This finding has the effect of a verdict upon this question of fact, and, as there was some evidence in support of it, the finding must stand. As we have reo peatedly said, when a case comes to this court upon a writ of error, the circnit court of appeals sits to review the errors of law of the court below, and those only. The method in which such errors may be presented to this court. has been repeatedly pointed out. In the case at bar no errors of law are alleged, and no rulings upon questions of law appear to have been made by the court below that the plaintiff in error seeks to review here. Trust Co. v. Wood, 60 Fed. 346. The judgment below is affirmed, with costs.
I..AOLEDE FIRE-BRICK MANUF'G CO. v. HARTFORD STEAM-BOILER INSPECTION & lNS. CO.
(Circuit Court of Appeals, Eighth CIrcuit.
1anuary 29, 1894.)
INSVRANOE-ORAL MODIFWATION OF POLICY.
In an action on a policy of boiler insurance, it appeared th:lt the policy only-covered seven boilers, which were all tha.t the insured had when