Upon thec1'Ol§ bill, that the complainants, or.some· of 1;hem, an illegd. iItle,and had becomeptirchasers of, the stock <pledged to Ream,West was entitled to have the illegality .of .,declared. The decree belOw is therefore !reversed, and the cause remanded for reference, on· the proofs in the record, to a master, who shall report hia conclusions of fact and law upon the several matters in dispute.
Li'MER. (Otrcuit Court of Appeals, Eighth Circuit. September 24, 1894.)
, . . ..
An oral consent in open colirt to 8Jl order of l'eference,made pursu:ant to a' stai1le. 'Statute (Code CiV. PrQC. Neb. § 298) will not enable the .circuit court .of: ,appeals (eighth circuit) to review the action of the circuit court.on t9.tlle report, where there was no bill of' exceptionsmakmg that report,()r the evidence upon which it was founded, a part of the record. DJ¢tzv. Lymer, 10 C. C. A. 71, 61 Fed. 792, affirmed. . ,
\.:Bef()l'e QALD:WELL, SANBORN, and THAYER, Circuit Judges.
Judge. ,As will appear from our previous opinion. in. this ca,ae (10 G. O"A.. 71, 61 Fed. 793, 795), we predicated our, ruling record presepted nO questions which could be reViewed by tlils';court on. .that there was no written stip,i.Ilation jury bill of exceptions found in the Th a does not challenge the, facts last ol;l. ruling was predicated. On the 'contrary, it ,inferentiaUyaqIp.itted that there was no written a jury" and:tl;1!tt the order of reference was made pursuant to a of in obedience to an oral consent expressed ,the case might be sent to a referee for trial. Srtcli. oral consent, ,it is said, enables this court to review the action circuit court Qnthe exceptions to the referee's report, althOjighJhere was no bill()f exceptions making that report, or thee'\'i4ehcetippn which it a part of the record. We 'cannot asse¥tf?thJs view .decisions. IIi ;Booghe,l' V'· .:rn.surance 00." . U.S. 90, 95, Mr. Chief Justice Waite serious reasons therein fully stated,. whether trie,dbefore to state laws can be reviewed in appellate under existing acts of congress.. That doubt left. unresolve4, ,but.it was held that such cases cannot be .reviewed. on writ ,of efrQr. unless a jury is waived in the mode providep bY tbe act 86, § 4, 13 Stat. 501, now sections 649,700, Rev. St.); is to say, by a written stipulation .it was decided that the record signed by the parties. In sufficiently show,ed that a of the pacties waiving a jury had been filed, because, in the state of Missouri, where
that suit originated, a reference could not be ordered without the written consent of the parties to the action. It was therefore assumed by the court that such written consent as the state statute required had been filed in that case. But in a later case, to which we particularly referred in our previous decision (Investment Co. v. Hughes, 124 U. S. 157, 8 Sup. Ct. 377), it affirmatively appeared that no written consent to a reference had been filed, and for that reason it was held that the case differed materially from Boogher v. Insurance Co., and that it could not be reviewed on writ of error. The record in the case at bar, as heretofore stated, shows that the consent to the order of reference was given orally in open conrt, and that there was in fact no written stipulation waiving a jury, such as the act of congress requires to render a case reviewable on writ of error when the parties dispense with a jury. It is therefore governed by the ruling made in Investment Co. v. Hughes, as well as by the decision in Boogher v. Insurance Co., supra; ",-herefore the petition for a rehearing must be, and it is hereby, denied.
WILE et al. v. COHN (FARMERS' S'l'A'l'E BANK IOWA, Garnishee). 1.
CONSTITUTES-NoTICE OF GARNISHMENT.
(Circuit Court, S. D. Iowa, W. D. September 17, 1894.) Rev. St. § 915, gives plaintiff, in common-law causes in the United States circuit court, remedies by attachment or other process against defendant's property, similar to those provided by the state statutes. Code Iowa, § 2962, provides that the clerl( shall issue the writ of attachment. Section 2967 provides that property of defendant held by a third person may be attached by giving the latter notice of attachment. Section 2975, as amended by Laws 18th Gen. Assem. c. 58, provides that garnishment is effected by informing the supposed debtor that he is attached as garnishee, and leaving written notice not to pay any sum due, or deliver' the property, to defendant, etc. There is no provisio'l' in the Revised Statutes or Iowa Code requiring either of such noticlc"S to proceed from the clerk. Held, that a notice to the garnishee is not a "process," within Rev. St. § 911, relating to process, and that such notice in actions in the United States circuit court in Iowa is properly signed by the marshal, and need not bear the seal of such court or the teste of the chief justice of the United States. 2. GARNISHMENT IN STATE COURT- V ALIDT1'Y. Where, in an action pemding in a United States court in Iowa, it appeared that in certain actions, aided by llye writs of attachment, lately pendlng in an Iowa state CQUl1:, the main defendant had been duly notified of pendency of such actions, and also of garnishment proceedings and judgments had been rendered against him therein, and that the garnishee had appeared in such actions, and filed his answers therein, submitting himself and the goods in his hands to the jurIsdiction of the Iowa court, and judgments were rendered, according to the form of the Iowa statutes, against said garnishee, and condemning to sale property in his hands as belonging to such main defendant, held, that irregularities in the garnishment notice served on the garnishee do not affect the validity of the judgments thus rendered against him.
In garnishment in a United States court in Iowa, against a bank of which J. was cashier, it appeared that J. took possession of defendant's (mortgagor's) stock of goods under a mortgage to the bank, aJ;Id . sold