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Otherwise the evidence will not be examined by the court of review.39 The request may be either a general request to find for the requestor, 40 or a request to find or rule that there is no substantial evidence to sustain a finding for his opponent,11 or a motion for judgment specifying the ground, or separate requests may be made for special findings.43 There can be no reversal for a refusal unless there is an exception.44

4.2

Where the court, without any intimation which would enable either party to anticipate such a termination, on its own motion, at the close of plaintiff's case, entered judgment for defendant, dismissing the complaint on the merits, plaintiff may secure a review of the dismissal, though he has made no request for findings of fact or a declaration of law in his favor.45 Otherwise it seems that there can be no reversal because of a refusal to make a ruling upon a question of law not arising upon the admission or exclusion of evidence.46 An exception

Com'rs, 145 Fed. 144; Delaware, L. & W. R. Co. v. Kutter, C. C. A., 147 Fed. 51; U. S. v. Robertson, C.. C. A., 183 Fed. 711; Union County Nat. Bank, Liberty, Ind. v. Ozan Lumber Co., C. C. A., 179 Fed. 710; Felker v. First Nat. Bank, C. C. A., 196 Fed. 200. But see Adam v. N. Y. Life Ins. Co., C. C. A., 113 Fed. 303; Berwind-White Coal Min. Co. v. Martin, C. C. A., 124 Fed. 313; National Surety Co. v. Cincinnati, N. O. & T. P. Ry. Co., C. C. A., 145 Fed. 34; Treat v. Farmers' Loan & Tr. Co., C. C. A., 185 Fed. 760; Joline v. Metropolitan Securities Co., 164 Fed. 65.

39 Mason v. U. S., C. C. A., 219 Fed. 547; Garwood v. Scheiber, C. C. A., 246 Fed. 74.

40 Garwood v. Scheiber, C. C. A., 246 Fed. 74.

41 Security Nat. Bank v. Old Nat. Bank, C. C. A., 241 Fed. 1; H. F. Dangberg Land & Live Stock Co. v. Day, C. C. A., 247 Fed. 477; Pederson v. U. S., for the Use of Washington Iron Works, C. C. A.,

253 Fed. 65; Raymer v. Netherwood, C. C. A., 257 Fed. 284; Kindred v. Black, C. C. A., 257 Fed. 302.

42 Pennsylvania Casualty Co. v. Whiteway, C. C. A., 210 Fed. 782.

48 Societe Nouvelle d'Armement v. Barnaby, C. C. A., 246 Fed. 68; Garwood v. Scheiber, C. C. A., 246 Fed. 74.

44 National Surety Co. v. Cincinnati, N. O. & T. P. Ry. Co., C. C. A., 145 Fed. 34; White v. Chase, C. C. A., 201 Fed. 896; Phoenix Securities Co. v. Dittmar, C. C. A., 224 Fed. 892; Sierra Land & Live Stock Co. v. Desert Power & Mill Co., C. C. A., 229 Fed. 982; Calaf v. Fernandez, C. C. A., 239 Fed. 795.

45 Chicago, M. & St. P. Ry. Co. v. George A. Hormel & Co., C. C. A., 240 Fed. 381; Meyer & Chapman State Bank v. First Nat. Bank, C. C. A., 248 Fed. 679.

46 Insurance Co. v. Folsom, 18 Wall. 237, 253, 21 L. ed. 827, 834; Searcy County v. Thompson, C. C.

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to a finding raises no question for review. A ruling that on the evidence the facts are too indefinite to authorize a judgment is not a refusal to make a finding on the evidence, but is in itself a finding that the plaintiff has failed to prove that he is entitled to a recovery.48

4.9

or it

A request for a finding is too late after judgment 40 when not made until after the judge has announced his

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decision,50

Whether the findings are general or special, there will be a reversal for an error in the admission or exclusion of evidence, which might have affected the decision; 51 provided there bill of exceptions; 52 but not for the admission of harmless evidence.53 Where there is a special finding of fact suffi

is a

A., 66

Fed. 92, 98; Consolidated Coal Co. v. Polar Wave Ice Co., C. C. A., 106 Fed. 798; Paul v. Delaware, L. & W. R. Co., 130 Fed. 951, 955; Southern Ry. Co. v. St. Louis Hay & Grain Co., C. C. A., 153 Fed. 728. But see Paul v. Delaware, L. & W. R. Co., 130 Fed. 951; U. S. Fidelity & G. Co. v. Board of Com'rs, C. C. A., 145 Fed. 144; Webb v. National Bank of Republic of Chicago, C. C. A., 146 Fed. 717. 47 Easton Oil Co. v. Holcomb, C. C. A., 212 Fed. 126.

48 Bain v. White, C. C. A., 256 Fed. 428.

49 National Surety Co. v. Cincinnati, N. 0. & T. P. Ry. Co., C. C. A., 145 Fed. 34; Webb v. National Bank of Republic of Chicago, C. C. A., 146 Fed. 717; Keeley v. Ophir Hill Consol. Min. Co., C. C. A., 169 Fed. 598; Lake Shore & M. S. Ry. Co. v. Eder, C. C. A., 174 Fed. 944; Jackson v. Mutual Life Ins. Co., C. C. A., 186 Fed. 447; Gibson v. Luther, C. C. A., 196 Fed. 203; Hennig v. Richey, C. C. A., Fed. 779.

196

50 Merrill v. Floyd, C. C. A., 50 Fed. 849, 850, per M. Justice Gray; Fed. Prac. Vol. III-16

Calaf v. Fernandez, C. C. A., 239 Fed. 795; Dunsmuir v. Scott, C. C. A., 217 Fed. 200.

51 Michigan Home Colony Co. v. Tabor, C. C. A., 141 Fed. 332; Continental & Commercial Nat. Bank v. Cobb, C. C. A., 200 Fed. 511.

52 Gardner v. Lake, C. C. A., 114 Fed. 306; Paul v. Delaware, L. & W. R. Co., 130 Fed. 951. Where it was agreed between counsel that the court should reserve its rulings upon objections to the evidence, and no exceptions were taken when the rulings were ultimately made, it was held that they could not be reviewed. Gibson v. Luther, C. C. A., 196 Fed. 203.

53 Reed v. Stapp, C. C. A., 52 Fed. 641; City of Key West v. Baer, C. C. A., 65 Fed. 440; Searcy County v. Thompson, C. C. A., 66 Fed. 92; Rhodes v. U. S. Nat. Bank, C. C. A., 34 L.R.A. 742, 66 Fed. 512; D. & C. F. Co. v. Gottschalk, 66 Fed. 609. But see Citizens' Bank v. Farwell, C. C. A., 63 Fed. 117, Southern Ry. Co. v. St. Louis Hay & Grain Co., C. C. A., 153 Fed. 730; Atlantic Tr. Co. v. Osgood, 155 Fed. 700.

cient to support the judgment, an error in the admission of evidence not affecting such finding is harmless.54

The trial ends when the finding is filed; or, if no finding is previously filed, when the judgment is rendered.55 An order made by the court after hearing a case without a jury taking the same under advisement, does not work a discontinuance of the suit, although a provision is added that the case is to be decided in vacation.56

When the findings are sufficient, or, it seems, whenever the evidence in support of the contention of the plaintiff in error is uncontradicted, the court of review may, instead of awarding a new trial, direct the judgment to be entered below in his favor immediately,57 or after the assessment of damages by the trial court.58 When the special findings are imperfect and do not cover all the issues, a reversal must order a new trial.59

§ 475. References. A State statute providing for compulsory references in a special class of cases, such as an action on an account, is not binding upon the Federal court.1

By consent the issues in an action at common law may be referred to a referee for trial.

54 Ibid.

55 U. S. Fidelity & G'y Co. v. Board of Com'rs, C. C. A., 145 Fed. 144.

56 Abraham v. Levy, C. C. A., 72

Fed. 124.

57 Anglo-American Land, M. & A. Co. v. Lombard, C. C. A., 132 Fed. 721, 735. See the argument of the author as plaintiff's counsel in Fisher V. Newark City Ice Co., C. C. A., 62 Fed. 569.

58 Fisher v. Newark City Ice Co., C. C. A., 62 Fed. 569; s. c., C. C. A., 76 Fed. 427, in which the author was counsel.

59 Anglo-American Land M. & A. Co. v. Lombard, C. C. A., 132 Fed. 721; Webb v. National Bank of Republic of Chicago, C. C. A., 146 Fed. 717; Towle v. First Nat. Bank of Boston, C. C. A., 153 Fed. 566. But see Insurance Co. v. Folsom, 18

The description of the referee

Wall. 237, 21 L. ed. 827; Streeter v. Sanitary District of Chicago, C. C. A., 133 Fed. 124; School District No. 11, Dakota County, Neb. v. Chapman, C. C. A., 152 Fed. 887; Southern Ry. Co. v. St. Louis Hay & Grain Co., C. C. A., 153 Fed. 730; Nashville Interurban Ry. v. Barnum, C. C. A., 212 Fed. 634; Schoenwald v. Bishop, C. C. A., 244 Fed. 715.

$ 475. 1 Howe Mach. Co. v. Edwards, 15 Blatchf. 402; U. ^S.. v. Rathbone, 2 Paine, 578; Sulzer v. Watson, 39 Fed. 414.

2 Newcome v. Wood, 97 U. S. 581, 24 L. ed. 1085; Philadelphia Casualty Co. v. C. C. A., 220 Fed. 401; Wm. Edwards Co. v. La Dow, C. C. A., 230 Fed. 378; Fifth Nat. Bank v. Lyttle, C. C. A., 253, 361, 363.

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the order as a "special master" does not impair the validof the reference.3 Attendance before the referee without jection or protest is equivalent to a consent to his appointhent. It is the safer practice for a party who has opposed an order of reference to attend before the referee and at the outset of the proceedings before the latter protest against the reference and to demand a trial by jury. When this was done and the objector upon the hearing of exceptions to the referee's report appeared only to protest against the jurisdiction; it was held that his taking part in the trial after his first protest was no waiver or consent.5

In the Fourth Circuit where both parties acquiesced in an order referring the case to a special master, authorized to hear the same, and pass upon the issues of fact arising upon the pleadings, and report his findings of fact to the court, the court of its own motion directed a new trial because of the impropriety of the proceedings.

A Federal court at common law has inherent power to appoint an auditor, where the issues or items involved are so numerous or complex as to render a proper understanding of the controversy by a jury impossible until they have been simplified."

It may then direct that the auditor's findings upon disputed items shall, upon a subsequent trial, be taken as prima facie correct.8

The District Court in Oregon referred to the State Board. of Control an action for damages for wrongful diversions of water, where the water rights of numerous parties had to be considered.9

In proceedings before the referee the State practice should be followed.10

V.

3 Philadelphia Casualty Co. Fechheimer, C. C. A., 220 Fed. 401. 4 Wm. Edwards Co. v. La Dow, C. C. A., 230 Fed. 378.

5 Ibid.

6 Swift & Co. v. Jones, C. C. A., 145 Fed. 489.

7 Re Peterson, 252 U. S., approving Peterson v. Davison, 254 Fed. 625; Davis v. St. Louis & S. F. Ry..

Co., 25 Fed. 786; Fenno v. Primrose, C. C. A., 119 Fed. 801; Vermeule v. Reilly, 196 Fed. 226; Lincoln v. Virginia Portland Cement Co., C. C. A., 258 Fed. 505,

8 Re Peterson, 253 U. S. 300. 9 Amalgamated Sugar Co. V. Hempe, 226 Fed. 1010.

10 Tiernan v. Chicago Lake Ins. Co., C. C. A., 214 Fed. 238.

In the absence of a rule upon the subject,11 it has been held that when the parties consent that the case be referred to the judge or some one else to try the issues, the only question presented by the writ of error is whether there is any error of law in the judgment upon the facts as found by the referee.12 The court of error may reverse if the plantiff's pleading sets forth no cause of action.18

It has been said in the Second Circuit that a judgment entered in accordance with the findings and conclusions of a referee may be set aside if these are supported by no evidence 14 or are clearly against the weight of evidence.15

It is the safer practice to move before the court to set aside the report and to except to his order thereupon.16

The order of the District Court confirming the report was treated as an overruling of the exceptions; and where no exception was taken thereto, it was not reviewed by the Circuit , Court of Appeals.17

11 A rule of the Circuit Court for the Districts of New York, provided after the findings of the referee's report a motion might be made for a new trial upon a case and exceptions and that a decision denying such motion should have the same effect as a ruling upon the trial by the judge without a jury, 13 Blatchf. 568, 569. Cf. Chicago, M. & St. P. Ry. Co. v. Clark, 178 U. S. 353, 364; Robinson v. Mut. Ben. L. I. Co., 16 Blatchf 194, 200; Naefie v. Cheesebrough, 14 Blatchf. 313; Parker v. Ogdenburg, L. & L. C. R. Co., C. C. A., 79 Fed. R. 817. As to the extent to which this rule governs the present District Courts, Alder v. Edenborn, 198 Fed. 928.

12 Paine v. Central Vt. R. Co., 118 U. S. 152, 158, 30 L. ed. 193, 195; Boogher v. Insurance Co., 103 U. S. 90; J. G. White & Co. v. Ball Engineering Co., C. C. A., 223 Fed. 618; Delaware, L. & W. R.

Co. v. Caboni, C. C. A., 223 Fed. 631; Grant v. National Bank of Auburn, 221 Fed. 1007. See Dundee M. & Tr. Co. v. Hughes, 124 U. S. 157, 31 L. ed. 357; Tiernan v. Chicago Life Ins. Co., C. C. A., 214 Fed. 238; Paine v. Standard Plunger Elevator Co., C. C. A., 203 Fed. 242.

18 Edenborn v. Sim, C. C. A., 206 Fed. 275.

V.

14 Fifth Nat. Bank v. Lyttle, C. C. A., 250 Fed. 361, 363; U. S. United Surety Co., 226 Fed. 985. See Bemis Car Box Co. v. J. G. Briel Co., C. C. A., 200 Fed. 749.

15 Fifth Nat. Bank of City of New York v. Lyttle, C. C. A., 250 Fed. 361.

16 Tiernan v. Chicago Life Ins. Co., C. C. A., 214 Fed. 238; Rutan v. Johnson & Johnson, C. C. A., 231 Fed. 370.

17 Rutan v. Johnson & Johnson, C. C. A., 231 Fed. 370.

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