STATE NAT. BANK OF FT. WORTH, TEX., v. SMITH, 94 F. 605

Having stated the facts, the opinion of the court was delivered by PARDEE, Circuit Judge. This is not a case where, a jury having been waived, the court proceeded to make a special finding of facts, and then rendered judgment thereon, but rather a case where the court proceeded to make a general finding, and rendered judgment thereon, and thereafter— possibly during the term — allowed to be prepared, found, and filed special findings as to the facts proven on the trial of the case.

We have had occasion to hold that in an action at law, where a jury is waived by stipulation in writing, the court cannot be required to make a special finding of facts, but may make a general finding. Key West v. Baer, 30 U. S. App. 140, 13 C. C. A. 572, and 66 Fed. 440. It is irregular, in such cases, for the court to make both a general and a special finding of facts, unless the same be done at one time, and in such a way that the conclusion necessarily follows that the general finding is based upon the special facts found. In fact, the supreme court, in British Queen Min. Co. v. Baker Silver-Min. Co., 139 U.

S. 222, 11 Sup. Ct. 523, held that the finding must be either general or special, and cannot be both. The special findings prepared and filed are made up of recitals of admissions, recitals of evidence, findings of preliminary evidential facts, and findings of ultimate facts. . In Raimond v. Terrebonne Parish, 132 U. S. 192, 10 Sup.

Ct. 57, it is held, citing authorities, that: “By the settled construction of file acts of congress defining the appellate jurisdiction of this court, either a statement of facts by the parties or a finding of facts by the circuit court is strictly analogous to a special verdict, and must state ihe ultimate facts of the case, presenting questions of law only, and not be a recital of evidence, or of circumstances which may tend to proye the ultimate facts, or from which they may be inferred. Burr v. Navigation Co., 1 Wall. 99; Norris v. Jackson, 9 Wall. 125; Martinton v. Fairbanks, 112 U. S. 670, 5 Sup.

Ct. 321.” In Moller v. U. S., 13 U. H. App. 472, 480, 6 C. C. A. 459, 464, and 57 Fed. 490, 495, this court, in dealing with an alleged finding of facts, took occasion to advise the bar as follows: “The bill of exceptions, which purports to he a finding of facts, is nothing more than a recapitulation of conflicting evidence, where, as recited therein, some witnesses testified one way and others testified directly to flic contrary. It is neither a statement of facts by the parties nor a finding of facts by the court. Raimond v. Terrebonne Parish, 132 U. S. 192, 10 Sup. Ct. 57; Glenn v. Fant, 134 U. S. 308, 10 Sup.

Ct. 583; Davenport v. Paris, 136 U. S. 580, 10 Sup. Ct. 1064: British Queen Min. Co. v. Baker Silver-Min. Co., 139 U. S. 222, 11 Sup. Ct 323. We suggest to the members of the bar in this circuit that an examination of those last-cited cases will be advantageous if hereafter, in common-law cases, they should desire to bring facts to this court for review.” An examina!ion of ihe special findings shows that the evidence and Ihe preliminary facts found are somewhat conflicting, but the weight thereof preponderates in favor of the correctness of the ultimate facts found.

On writ of error we are not permitted to examine the evidence to determine its force and effect otherwise than, if such question be properly made, to inquire if there is any evidence at all to support the findings of fact. As to the weight and effect of the evidence, the finding of the trial court is as conclusive as the verdict of a jury. Lehnen v. Dickson, 148 U. S. 71, 73, 13 Sup. Ct. 481.

And if we were called upon to examine the weight of the evidence, we should be embarrassed in this case, because there is. no certificate that the evidence recited in the findings of fact was all the evidence submitted on the trial. If we assume the proceedings below to have been regular, and therefore that the special finding of facts is properly before us, then is presented the question whether the farts as found are sufficient to sustain the judgment. On this proposition we have no doubt. The court specifically found that the stock of the City national Bank of Ft.

Worth, in question, was sold, and purchased about June 28 and November 2, 1894, by the State National Bank of Ft. Worth, under authority conferred by the notes which said bank held against Dan Garner and Caswell Bros.; that the purchase was duly notified to the City National Bank, and new stock certificates were issued therefor, and, under the direction of said State National Bank, placed in the name of John C.

Harrison (its cashier) as trustee; that the State National Bank not only held and controlled the certificates, but placed the stock upon its books as an asset, and on March 5, 1895, reported the same to the comptroller of the currency; that John C. Harrison, trustee, in whose name the stock was placed, was a trustee for the State National Bank of Ft. Worth; and that at the date of the failure of the City National Bank the State National Bank of Ft. Worth was the owner of the stock.

There is recited in the special findings some evidence, as well as evidential facts, tending to show that the State National Bank was, notwithstanding the sale and purchase, holding the stock as collateral, and not as owner; but, as said above, this court cannot consider nor give effect to this evidence. It was doubtless given full weight, in connection with the other evidence, by the judge who tried the case. Affirmed.