James-Dickinson Farm Mortgage Co. v. Seimer , 12 F.2d 772 ( 1926 )

ANDERSON, Circuit Judge.

This is an action for damages for deceit, brought in the state court and removed by plaintiffs in error to the court below. The cause was tried by the court without a jury, a jury being waived. No stipulation in writing waiving a jury was filed with the clerk, as required by section 649 of the Revised Statutes (Comp. St. § 1587). Under section 700¹ of the Revised Statutes “the rulings of the court in the progress of the trial” may be reviewed when a stipulation, waiving a jury, has been filed with the clerk as provided in section 649, but' not so when the jury is waived orally as in this ease. In such case it is settled law that none of the questions decided at the trial can he re-examined on writ of error. Among the many eases so holding we may note the following: Bond v. Dustin, 112 U. S. 604, 5 S. Ct. 296, 28 L. Ed. 835; Spalding v. Manasse, 131 U. S. 65, 9 S. Ct. 649, 33 L. Ed. 86; County of Madison v. Warren, 106 U. S. 622, 2 S. Ct. 86, 27 L. Ed. 311; Erkel v. United States, 169 F. 623. 95 C. C. A. 151; Ladd & Tilton Bank v. Hicks C.o., 218 F. 310, 134 C. C. A. 106; Illinois Surety Co. v. United States, 229 F. 527, 143 C. C. A. 595; United States v. National City Bank (C. C. A.) 281 F. 754

Plaintiffs in error urged upon the argument, and contend in their briefs, that the trial court erred in its rulings upon the statute of limitations and upon the applicability and validity of the Texas statute, set forth in the declaration, authorizing the assessment of exemplary damages. These were rulings in the progress of the trial, which can only be reviewed when the written waiver is filed, as provided in section 649. Some of the eases hold that, when no written stipulation is filed, the only question that can be presented in this court is whether the declaration is sufficient to sustain the judgment; others hold “no questions are open to review on error, except they arise on the process, pleading, or judgment.” But plaintiffs in error have not put themselves in position to raise any question upon these. The statute authorizing writs of error requires that there he annexed to and returned with the writ of error an assignment of errors, and by rule of this court errors not assigned will not be considered. Plaintiffs in error have made numerous assignments, the corporation 26 and the individual 27, but not one of these challenges the sufficiency or validity of the process or pleadings or judgment, or raises any question upon either of them.

The corporation plaintiff in error insists that the service upon it was not good and should have been quashed. If the ruling of the trial court upon this question was error, we cannot notice it as a plain error not assigned, because under the rule we may only notice a plain error not assigned “involving the merits of the ease.” While not required to do so, we have examined the entire record, and are satisfied that the declaration states a good cause of action, and that the evidence of the defendant in error, which was all the evidence given in the cause, is sufficient to support the finding and judgment.

Affirmed.

1 Comp. St. § 166S.