Albert Guild v. Joseph Frontin

Key passage — most relied on by later courts

““There is in the record what purports to be a special finding of the facts by the court. But the record does not show that tho parties, or their attorneys of record, filed with the clerk a stipulation in writing waiving a jury, as required by section 649 of the Revised Statutes of the United States. The recital in the record that ‘both parties, in open court, having waived a jury, and agreed to trial before the court,’ does nor show a compliance with section 649. The following recitals in the record have been held insufficient for this purpose: “The issue joined hy consent is tried by the court, a jury being waived,’ and ‘the above cause coming on for trial, by agreement of parties, by the court, without the intervention of a jury,’ and ‘the parties having stipulated to submit üie case for trial by the court without the intervention of a jury,’ and ‘said cause being tried by the court without a jury, by agreement of parties,’ and ‘upon the trial of this cause before the Hon. S. H. Treat, sitting as circuit judge, a jury being waived by both parties.’ * * .* The sufficiency of the facts found by the lower court to support the judgment can only be considered by this court when a jury has been waived in writing, as provided in section 619. When a jury has not been thus waived, tho facts found by the lower court cannot be noticed by the appellate court for any purpose, and the case stands as though the judgment of the lower court had been rendered on the general verdict of a jury”

quoted by 1 later decision, including Duncan v. Atchison, T. & S. F. R.

“Parties may, by consent, waive the trial of issues of fact by a jury, and submit the trial of both facts and law to the court.”

quoted by 1 later decision, including Faison v. Nationwide Mortgage Corp.