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.

MERCANTILE TRUST CeI.V. WOOD.

347

In Error to the Oircllit Court of the United States for the Souinern Distriet of " Attachment by Richard Wood, Samuel Brown, Henry Henderson, Henry Harper, and Andrew Crow, composing the firm of Wood, Brown & Co., against the Crescent Coal Company. The Mercantile Trust Company of New York intervened, claiming the attached property under a There was judgment against the and it brings error. William J. Roberts (John F. Lacey, on the brief), for plaintiff in error. Carroll Wright, for defendants in error. Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge. SANBORN, Circuit Judge. The controversy in this case was over a stock of goods that was in the possession of the Crescent Coal Company at What Cheer, in the state of Iowa. Wood, Brown & Co., the defendants in error, attached this stock February 13, 1891, on a debt of the coal 'company due to them. The Mercantile Trust Company, the plaintiff in error, intervened, and claimed the goods under a mortgage made to it by the coal company, dated February 1, 1890. There were two controlling issues tried. They were whether or not the mortgage covered the stock of goods, and, if so, whether or not the mortgage was fraudulent and void as to the attaching creditors. A jury was waived, and the case' was tried by the court. The court found that the mortgage did not describe the goods in controversy, and that, if it did,>tt was fraudulent and void as against, the attaching creditors, and ordered judgment in their favor. The judge filed a careful and exhaustive opinion, which covers 17 closely-printed pages of the transcript, in which he states the history of the case, the evidential facts he . deems' established, his ultimate conclusions from those facts, his reasons for these conclusions, and the judgment that he directs to be rendered in the case. In their brief, counsel for plaintiff in error specified 26 supposed errors, some of fact, and others of law, based on various statements and conclusions found in this opinion. But, upon looking into the record, we find the questions they attempt to present are not material to the decision of this case. The only exceptions any of these specifications have to rest upon are four that purport to be taken "to the findings and conclusions of the court in the following respects:" First. To so much of finding of fact No.6 as relates to the defendants' possession of and dealing in the stock of goods after the attachment and the release of the same; second, to the third conclusion of the court that the stock of goods was not included in the mortgage; third, to the fourth conclusion of the court that the mortgage was fraudulent and void as to the attaching creditors; and, fourth, to the final conclusion in favor of the attaching creditors. Section 700 of the Revised Statutes, which governs the practice in this regard in this court" provides that:

FEDE;RAL REPORTER,

vol. 60.

.· ,of fact,' any clvD.!!ause ,In a .,18, ,trl9\l I4ld \teter"mtn"ed b,Y the court, With, out the Interv,en"tion of a jury", aQCqrdlllg to section 649 (which provides for the waiver of a. jury and' it trial by the cimlt:t)J·tbe rulings of the coUrt In the progress of the trlal of the cause, Ife;:\ilwtettto.at the time"a.nd duly presented; by a bUl Of exceptions, may be tl),e supreme court upon a writ of error ,or upon .appeal; and fllidffiJ! isspecisl, tlle reviewiilay extend to the ,determination of the facts,found to sUPI!Ort the judgment." "

The' finding referred to in conclusio:U, is not a report put, be, like special. of a jury,' of a findllig;l'of'the ultimate' -facts whICh the eVidence establishes. The only question the special finding presents that would, not be presented by a general finding is whether or not; in any'view, the fac:tB it-are suftlctent to :suppo'rt the judgmen.t. With the single exception of this question, which is presented by the special finding itself, there are only two methods by which questions of law,can.,be$)cpresented to: the court that tries the facts that this court can them by-writ ofel'l'ot'. These methods are, 'first, by BeWiJon.ltble' objections, and exceptions t6 the r1'J.lings of the court upon·the,adUlission or rejection of evidence, and, second, by rebefore'the trial, to'make declarations of law,and excepting to its 'l'efusal to doiso, and ,to its declarations of law.,itultny, that do not -accord with the propositions asked, in exactly theisame way as instructions ,to a jury would be requested, andthe·ml:il1gsof the court giving or refusingJtllem would be cepted 1»,ifithe trial was before a jury. The finding of the court; whethel'i ·ge:aeral, or special, the office, of a verdict of a jury. it is made, andftled, the trial is ended. Exceptions to the llndingJ tor. to statements of legal conclusions contained in it; orin; an,opinion in which it is contained, or in an opinion filed with They are as ,futile as exceptions to the verdict ·of.a'dury., When a ea$e comes,to this court upon a writ of error, this isS/court fOl'the correction of the errors of the court below' solely. To enable us 00 review those errors in a case tried by the court: it must appear that the legal propositions on which they rest were presented to that court and ruled, upon before the trial they are involved in the $ingle question whether or not the facts' found in a special finding. ,are sufficient to support the ju9gment.'.!t ,is, in the' words of the statute, "the rulings of the court in the p,rogress of the' trial of the case," and these only, that we are authorized to review, unless such rulings are involved in the single question we have mentioned. Clement v. Insurance 00., 7 Blatchf. 51-,53, 54, 58, Fed, Oas. No. 2,882; Walker v. Miller, 59 Fed. 869; Bowden v. Burnham, Id. 752; Norris v. Jackson, ·9 Wall. 125, 127; Insurance 00. v. Folsom, 18 Wall. 237, 249; Cooper v. Omohundro, 19 Wall. 65, 69; Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ot 321; Lehnen v. Dickson, 148 U. S.71, 13 Sup. Ot. 481. No requests for any declarations of law were made in this case, and the only question raised by the proceedings at the close of the trial is whether or not the facts found by the special finding con· tained in the opinion of, the court are sufficient to sustain the judgment. This is not a debatable question. The mortgage in ques·

tWl.,

*ew

MERCANTILE TRUST CO. fl. WOOD.

349

tion contained no provision that the mortgagor might sell the stock of goods in the usual course of trade, or that it would account for or pay over the of such sales or any part of ,them to the mortgagee, and yet, for many months before the levy of the at· tachment, the mortgagor had the exclusive p06session and control of the :stock, sold from it and replenished it by purchase, in the ordinary course of the business of a merchant, and pever accounted for or paid over any part of the proceeds of the sales to the trust com· pany. On this state of facts, the court below found that this mort· gage was frandulenta.s to the attaching creditors. Under this evi· dence, ibis was not a question of law, but, according to the decision of the highest judicial tribunal of the state of Iowa which governed this Iowa mortgage, this was a question of fact. Torbert v. ;ga,Yden, 11 Iowa, 435; Hughes v. Cory, 20 Iowa, 399; Sperry v. EtheMdge, 63 Iowa, 543, 54!), 19 N. W. 657;' J affray v. Green· baum, 64 Iowa, 492, 20"N. W. 775. Section 1011, Rev. St., which governs this court in this matter, provides that "there shall be no reversal in the supreme court, or in a cirCU\t court upon a writ of error, ,* * * for a,ny error in fact." We cannot, therefore,re· view this finding, and it must stand. MoreQver, if we could, the result would not be different, for there is ample evidence in the record to sustain it. The conclusion we have reached upon this question renders it unnecessary to consider the' question whether or not the stock of goods was included in the mortgage. That is now'immaterial. If it was not, the judgment must stand it was not, and, if it. was, the judgment must stand because the. mortgage was fraudulent. Our conclusion is that the facts found by the ((ourt were sufficient to sustain the judgment. A single exception was taken to one of the rulings of the court in the progress of the trial, and will now be noticed. The uncon· tradicted testimony of the president and general manager of the coal company was that from the beginning of the year 1890 until the attachment was levied the stock of goods in question was in the exclusive possession and control of the coal company. That company during all this time, with the exception of a few months when its business was interrupted by fire, traded with this stock of goods in the usual course of business of a merchant, and never applied any of the proceeds of the sales from it, during this time, to the payment of the mortgage debt, nor in any way accounted to the mortgagee for any of these sales. The attachment on the stock was released shortly after it was levied, and a sum of money was deposited in the court in place of the goods, to abide the result of the trial of this case. In the course of his testimony, this witness testified over the objection of the plaintiff in error that the coal company kept on running the store, after the levy was released, in the same way as before. This testimony was undoubtedly immaterial, and, if it tended to establish or overthrow any material disputed fact in this case, its admission would be a reversible error. But its only tendency to prove any material fact here was to show that during the existence of the mortgage, prior to the levy, the stock of goods was left in the poS%ession of the coal company, and traded with in

350,

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!& ' .· : ' "

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f',,:

rr HALL v.HOUGHTON &UPPJ,fERCA1frILE 00, , (oo-Cttit Court of AppOOlil, Circuit. Februa.ry26, 18M.)
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, ' 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.
!

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i

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