SHIPMAN v. OHIO COAL EXCHANGE, 70 F. 652

After stilting (lie foregoing' facts, the opinion of the court ivas delivered by LURTÜN, Circuit Judge. The errors assigned do not arise upon the record independently of (he bill of exceptions. Unless, therefore, the bill of exceptions has been regularly allowed the grounds assigned for reversal are not open for our consideration. The parties seem to have labored under the opinion that they could obtain a trial of the issues in the mode provided by

section 5222, Rev. St. Ohio, and preserve to themselves all the modes of review by an appellate; court admissible under the law of Ohio in cases properly within the terms of the

section referred to. The statute' referred te» in the stipulation for a trial by a special master is expressly limited in its application to “actions in which the; parties are not entitled to a trial by jury.” This action was a plain, simple action at law, and edl.hei* party- was entitled to have a trial by jury. The statute therefore had no application, even if the cause had beem tried in the; courts of Ohio. The stipulation that the rights of the' parties should be “in all respemts as though tin' cause; of action was within the provisions of se;ction 5222, Rev. St. Ohio,” is unavailing.

It neither emlarges nor contracts, the rights of the parties in respect of the mode or authority of this court to revise on writ of error a judgment of the circuit court of the United States where there was no trial by jury. The whole subject of the preparation and allowance of bills of exception and of the granting of appeals or writs of error is independent of state statutes or state practice, and depends upon either the common law or the acts of congress regulating the subject: In re Chateaugay Ore & Iron Co., 128 U. S. 544, 9 Sup. Ct. 150; Andes v. Slauson, 130 U. S. 435, 9 Sup. Ct. 573; Insurance Co. v.

Hamilton, 11 C. C. A. 42, 63 Fed. 93. The trial thus ordered before a special master, on consent of the parties, was neither a trial by jury nor a trial by the court in accordance with

section 649, Rev. St. U. S., but was a trial by a master sitting as a.referee or arbitrator, under a rule of court, consented to by both parties. The practice of referring suits pending in courts of the United States to a referee or arbitrator, under a rule of court, consented to by the parties, has been sanctioned in a number of instances.

Where there has been such a reference, only rulings and decisions in matters of law, after the award, are reviewable on writ of error, and, to present a question to an appellate court, it is essential that the court trying exceptions to the award should ascertain the facts upon which the judgment or opinion excepted to was founded. Railroad Co. v. Myers, 18 How. 246; Heckers v. Fowler, 2 Wall. 123.

The stipulation in this case was not, as is usual, under a rule to submit a pending case to the award of an arbitrator, whose conclusion should be entered as the judgment of the court, but that the parties reserved the right to file exceptions, and that the court might confirm, modify, or re-refer the issues. This was an effort to apply the Ohio practice in regard to a reference of an equitable action to a purely legal action pending in a court of the United States.

If we construe the stipulation and its legal effect most favorably to the plaintiff in error, it must be treated as an agreement that the court might review and reconsider,- on exceptions, all the findings of law and fact made by the master, and for this purpose might examine and weigh all the evidence reported to the court by the master, and that judgment should then be entered according to the result of this re-examination of the case. Thus considered, the effect of the “confirmation” of the report would enable us to regard the “confirmed” report as “findings of law and fact” by the court.

Inasmuch, however,' as the stipulation thus construed would not be a submission to the decision of the court without a jury, within the provisions of sections 649, 700, of the Revised Statutes of the United States, the only questions presented upon this writ of error is whether there is any error of law in the judgment of the court upon the facts thus found by the court while sitting, by stipulation, as if a chancellor acting upon exceptions to a master’s report in equity. The case thus presented, in its' most favorable aspect for the plaintiff in error, is .completely governed by Shipman v. Mining Co., 158 U.

S. 356, 15 Sup. Ct. 886; Bond v. Dustin, 112 U. S. 604, 5 Sup. Ct. 296; Paine v. Railroad Co., 118 U. S. 152, 6 Sup. Ct. 1019; and Andes v. Slauson, 130 U. S. 435, 9 Sup. Ct. 573. The submission in Shipman v. Mining Co. was almost identical with that in tiie case before us. In Paine v.

Railroad Co., supra, the submission was, under a Vermont statute, to the judge “as referee.” The court treated the findings of fact by the judge sitting as referee as properly brought up by tiie bill of exceptions, and held that the only question presented by the writ of error was whether (.here was any error of law in the judgment rendered by the court upon the fads found by the referee. In Andes v. Slauson, cited above, the submission was “to the lion. A. C.

Coxe, at ids chambers, without a jury, with the same force and effect as if tric'd at a circuit term of this court.” This stipulafiou was made the order of tiie court by consent of the parties, and the cau.se submitted 1o Judge Coxe, at chambers, who hoard the evidence, and made a. general finding in favor of ilre plain!iff, on which judgment was regularly entered. A bill of exceptions was allowed, setting forth all tiie evidence heard at the trial, and setting out objections made and overruled during the trial to’the admissibility of portions of the plaintiff’s evidence.

Tpon a writ of error to the supreme court, that court, through Hr.

Justice Cray, said: "The right oí review is limitad to questions oí law appearing on the face of the record, and does not extend to matters of fact or of discretion. •Questions of law arising upon the trial of an issue of fact cannot be made part of the record l>y bill of exceptions unless the trial is by jury, or by the court after due waiver in writing of a jury trial; and when the trial is, by rule of court anil consent oí parties, before a referee or arbitrator, no question of law can be reviewed on error, except whether the facts found by him support the judgment below.

In the present case there was no demurrer, or case stated, or special verdict, or finding of facts by the court or by a referee, presenting a pure question of law. But the pleadings presented issues of fact, which, in the legal and regular course of proceeding, could be tried by a jury only, and at a stated term of the court, unless the parties either, in writing', waived a jury, and submitted the case to the court’s decision’, or else agreed that the case should be tried and determined by a referee. There was no waiver of a jury trial and snbmiS' sipn of the determination of all issues of fact to the court.

But the case was tried, by consent of the parties, before the judge, at chambers, under an order providing that it should be so tried, and that ‘if it shall appear to the judge, upon such trial, that there are questions of fact arising upon the issues therein, of such a character that the judge would submit them to the jury if one were present.’ they should be submitted to a jury at the next term of the court; and the only finding of the judge was a general finding for the plaintiff.” In the case before us there were no rulings b.y the court or master, during the progress of either of the trials, to which exception was taken at the lime, and presented by bill of exception.

That (he facts found by the special master and adopted by the court are sufficient in law to support the judgment rendered by the court has not been disputed, or made the subject of an assignment of error. The real contention of plaintiff in error has been that the evidence submitted to tiie special master and re-examined by tiie court, aud set out in the bill of exceptions, does not. support the conclusions of fact upon which tiie judgment rests.

Being of-opinion that the bill of exceptions improperly includes evidence heard on the trial, and that the facts stated in that bill of exceptions cannot be regarded on error in this court, we must affirm the judgment.