Jones v. United States ex rel. Tompkins County Nat. Bank

HOOK, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

The plaintiffs in error excepted to the orders of the trial court overruling their motions to quash the alternative writs of mandamus and to compel the relators to amend their petitions in certain particulars, but the exceptions are unavailing. Even were the action of the court erroneous, which does not appear, it has not been challenged in the assignments of error.

Aside from the foregoing the record discloses no exceptions whatever on the part of the plaintiffs in error. No bill of exceptions was preserved, and consequently the rulings of the court during the progress of the trial are not shown. No request was made for any specific declarations of law. No legal propositions applicable to the case or any particular phase of it were formulated by plaintiffs in error and presented to the trial court for its ruling thereon. They took no exceptions to the special findings of fact or to the judgments which were rendered upon them. It is obvious, therefore, that the proper scope of review by this court is within a very narrow compass. Mercantile Trust Co. v. Wood, 60 Fed. *519 346 , 8 C. C. A. 658 ; Hooven etc. Co. v. Featherstone’s Sons, 111 Fed. 81 , 49 C. C. A. 229 ; Kirk v. United States, 163 U. S. 49, 56, 16 Sup. Ct. 911, 41 L. Ed. 66 . It is limited to the single question whether the judgments of the trial court are supported by the special findings upon which they are respectively predicated.

Complaint is made that the trial court did not make a finding of fact as to the character of some of the bonds which became merged in the judgments, and that it did not specially state certain conclusions of law in accordance with the civil practice act of Nebraska. The making of special findings by a Circuit Court of the United States upon a waiver of a jury, and the effect thereof, are governed by the acts of Congress (Rev. St. §§ 649, 700 [U. S. Comp. St. 1901, pp. 525, 570]), and not by the statutes of a state. Nor was the action of the court in that particular the proper subject of an exception. Insurance Co. v. Folsom, 18 Wall. 237, 253 , 21 L. Ed. 827 .

The only questions which challenge attention upon a consideration of the sufficiency of the facts found and stated by the trial court to justify the relief finally awarded are whether it appears that before the proceedings were instituted and the alternative writs were issued a demand was made by the relators upon the municipal authorities to apply the funds then in the city treasury upon the judgments and to levy a tax for the deficiency, and, if not made upon them, then whether such demand was necessary or should be held to have been dispensed with in view of the attitude of the latter against paying the judgments under any circumstances. It is sufficient to say that these matters are disposed of adversely to the plaintiffs in error by what was said by this court in United States v. Saunders, 124 Fed. 124 , 59 C. C. A. 394 .

The judgments of the Circuit Court are affirmed.