344

G.B-DenlSon and N. B:MtXey(Gilbert W. Pasco, W. M. Harrison, Q.ndM. M.Edmiston, on the brief), for plaintiff in error. W.'l\'Hutchings (R. It Sliepard and H. O.Shepard, on the brief), fOr defendant in error. .' and SA,:N:aORN, Circuit Judges, and THAY· ER, Judge. ",. Circuit The plaintiff in error, James B. suit against J. S'" 8cott, the defendant in error, in court in,the Inqjan Territory, on certain promissory notes, and sued out an order of attachment in the action. On motion,of.thedefendant, theordllr of attachment was quashed, and thereuWij.',the plaintiff sued, out this writ of error to review the lower court ,quashing the' attachment. The principal action}1fiatill pending in theJ9wer ,court. ,A.il order,quashing an a final decisi,oIl, within the meaning of the act ofcongl'eijacreating this court <chapter 517, § 6,26 8tat.:826), and a writ of errOl" 'will not lie to review such an order (Robinson v. Belt, 5 C. Fed. 328;,:niddle,v. Hudgins, 7,C. C. '4.335, 5,8 Fed. add tha.tthia is the rule. in,Al'kanaa:s, under the Code Qt:.Ptractice of. that state, in1'S>rce in the Indian ,Territory, and under which the attachment ,in ;this case was,'sued out., Didier v. Galloway, 3 ·l\.rk.501;Heffn'er t: Day, 54 Ark. 79.1 Theadjudged cases'inother states are not harmonious, but the weight of authority is that an sustaining or dissolving an ,attacb.J:Dent is interlocutory, and not appealable, ,in the 'absence of a statute 'making it so.LBlack, Judgm. §36;'Elliott,App. Proc. §§ 81, 88,and cases cited in! note' 3. The casent bar Is distinguishable from that of 8tandley·v. Roberts, 59 Fed; ;836l in this: In that case there was a final decree: upon' all of the :issues in the case between the parties to the apPeal;: As ,between 'them, there was a final and complete determination':61 the action upon issues which did not: concern the other parties to the suit., In this ease the mai:il. action between the parties Aoithe,writ of error is pending and undetermined in the lO'WE:r court. The writ of error is dismissed. '

:ADKINS v. W. & 1. SLOANE.'

(OircuIt Court of Appeals, Eighth Circuit., Februar;y 12, 1894.'
, No. 344.

REVIEW ON ApPEAL-SPECIAL FINDING.

Where some of the facts are 'admitted by 8tfpttlatlon, and others left to be proved,' and the court finds the issues f{)r the plaIntiff "on all the eVidenee,"',1:hefinding is general, and the' opinion of the trial court, 111 which 'th9ql1e8tions of fact and law are discUSllM, cannot be considered. In connection wIth as a special 1lnWng of facts. review.. ble,by ttie,oourt ot appe8Ja.' " "

'14 S. W. 1090.

. ADKINS ". W. & J. SLOANB.

345

In Error to the Circuit Court of the United States for the Western District of Missouri. Attachment by W. & J. Sloane, a corporation, against Isaac Wolf. An interplea was filed by James G. Adkins. Plaintiff obtained judgment. The interpleader brings error. Henry Wollman and Clarence S. Palmer (R. O. Boggess, Scammon & Stubenrauoh, Brown, Chapman & Brown, and Garner & Walsh, on the brief), for plaintiff in error. Nathan Frank, for defendant in error. Before OALDWELL and SANBORN, Oircujt Judges, alld THAY· ER, District Judge. THAYER, District Judge. This was a writ of error to reverse a judgment which was rendered on an interplea in an attachment suit. W. & J. Sloane, a corporation, brought suit by attachment against Isaac Wolf on the 7th of December, 1891, alleging, among other things, for the purpose of obtaining a writ of attachment, that Wolf ''had fraudulently conveyed or assigned his property and effects so as to hinder and delay his creditors." The writ of attachment was levied on a stock of carpets, mattings, and store fixtures at the time in the possession of James G. Adkins, the interpleader, and situated.in a store at Nos. 1221 and 1223 North Main street, Kansas City, Mo. Under the provisions of section 572, Rev. St. Mo. 1889, Adkins filed an interplea claiming the property under a deed of trust in the nature of a mortgage, which had been executed by Wolf on November 30, 1891. The deed of trust purported to convey to Adkins, as trustee, the stock of merchandise which was attached, and certain real estate, and certain notes and accounts, for the common benefit of certain persons named .in the deed, who are admitted to be creditors of Wolf, and his only creditors. The interplea alleged generally that Adkins, as trustee, was the owner of, and was in poflsession of, the attached property when the same was seized, and that WoU then had no interest in said property. The answer to the interplea averred, in substance, that the property belonged to Wolf when the writ of attachment was levied thereon, and that Adkins held the property at that time under and by virtue of a pretended deed of trust dated November 30, 1891, whioh had been made and executed by Wolf for the purpose of hindering, delaying, and defrauding his creditors, as the said interpleader well knew. The issues thus framed were tried before the court, pursuant to a stipulation waiving a jury; and the court rendered a judgment in favor of the attaching creditor, and against the interpleader. Subsequently, a judgment was rendered against Wolf in the sum of $5,960.98 on the plaintiff's cause of action, and a further order was entered, sustaining the attachment. The parties to the interpleader suit filed a stipulation admitting certain facts, but the most important issues arising on the interplea, touching the motives which had actuated the parties to the deed of trust in executing that instrument, were left to be determined by the court from such evidence as might be adduced by either"party at

346

DDlilBAL .BBPOBTEB,voh, 00.

theltriab 'lc!fhe,reeordcOlifuinil theopmionuofithe cireuitcourt, in which several questions of law and fact arediscussedandlJOnsid,emit is an,ultima"OO find'iq'iaXthe!followmg language.: ,."Qnall therevidence, I fiDdrthe issues for the plainillf, and against: the interpleader/' It ,is manifest, we 1WJ,*, an\p;spectionIQfl :tM-s 'record, we womd not.be authe togethe;r ,wIth the admItted. facts, as to ,a, :fi.Il.ding' of ,the by the court, such as the act and, authorIzes, t,hem as equivalent of a general ve1>dietbyl a jullY.' 'Lehnen v.. DIckson, 148 in S. 71, 13 Sup. 01.481, and citations. In this view of the case, which we have felt compelled to adopt, the record presents no debatable question which this'OOurt 1s authorized Jto": for the reason that no deolaraweteasked,and: ItO exceptions were taken to the admis$ibnoi', exclasion of tElM!imony. The judgment rendered by the trial court· :was alea1'ly iluthorizM by the pleadings, ,and this is the ,onlypohittbat We have theirigliitfo consider-the finding being general, and nd been saved either to the admission or exclusion:d:f'tesnmony,,()r to the giving or refusing of instructions. At the preeentr teI'n1 this! court 'has had occasion toeonsider this subject, its +!ewsthereon, in three different cases, besides theone::at: bar.Withoutrepeatingwhat has so recently been said with:irefel'ence to the'proper mode -of saving exceptions in law cases whibh. are court on' a stipulation waiving a jury, it will sufficient ' to: refer· to the recent cases; and the authOrities'therein cited. Wftlkerv. Miller, 59 Fed; 869; Bowden v. Burnham, ;rd.' 752; ·Trnst.Od. v. Wood, infra. The judgment of the for the i'easons 1above explained, must be affirmed, Ibid' it is so· or4ered. AIf6Mled. '
I

HlllROANTitto,'TnPSTCO. v. WOOD et aL

"·,,1 "

of AppeaJ.s,.EIgl1th Clrcu1t. February 12, 1894.) , No. 339. " ilJ,tr1ed by tbecourt without'atjttry "the rulings of the court in the progress of if excepted,tollrt the time" may be reviewed upon appeal and. that I when the finding iSI!JJ;)!Wiil the review may extend to the determination of the sufficiencyoftM'facts found to sUpport the judgment," no.reQuests for any decla:rat1ons of law are made at the trial, and e;w;:ceptions·to,tJile rulings oJ on the evidence are not taken, the , : o.llly qUelltlon, for review on,apP1al is the sufficiency of .the findings of , . ';.. .'.' ' Where ,enattel mortgage' 0'11: a stOCk ofgoool'l' iil'Iowa contains no . provision lillowing the mortgagor rosell, and he does sell; the goods in the usual' course pf trade, witllollta.cc0unting therefor, to the.mortgagee, the Is (raudulent as to. creditors is question whether or not such . one of fact, llnder the decisions of the supreme wurt of Iowa, which the national courts follow in such a case. Jatl'ras' V. Greenbaum, 20 N. W_ '775,'64: Iowa, 492, followed,')' :',
'1. REVIEW oNA.PPEAL-EXClEPTT(iNS: , UMel'Re-r.' St. U. S. §700, :which declares that when an issue of fact

:23

a

CONVEYANCES':":'CtU'1":l'EL'

OF FACT.