ELKHART CARRIAGE & MOTOR CAR CO. v. PARTIN, 9 F.2d 393

MACK, Circuit Judge. Pursuant to Tennessee statutory practice, there was filed in the state court a bill in equity, instead of an action at law; for breach of contract in failing to pay an alleged balance of salary due under a contract of employment. The principal defendant removed the case; the eodefendants, garnishees, did not appear and were disregarded. On removal the cause was docketed on the equity side and tried by the District Judge, who entered a so-ealled decree and judgment for plaintiff. A document, termed a bill of exceptions, is included in the record.

The cause is before us on appeal, not on writ of error. Defendant, which acquiesced in the trial procedure, now asks us to reverse the judgment as a decree in equity, because ot' the alleged violation of its right to a jury trial, and the failure to follow equity rule No. 22, requiring a transfer to the common-law side whenever it appears that a suit in equity should have been brought as an action at law. The case was one at law, not in equity; it should have been so docketed. The so-called judgment and decree is an ordinary common-law money judgment. Writ of error, not appeal, is the proper procedure." While

section 10 of the Act of February 13, 1925 (Comp. St. Supp. 1925, § 1649b), was not applicable to a judgment or decree theretofore rendered, yet in view of its provisions that such an error is to be disregarded, and in the absence of any motion to dismiss the appeal, we pass the question without further comment. . The state practice,.permitting the enforcement of a common-law cause of action in equity, should not have- been followed. But defendant, after acquiescing therein up to and after judgment, can no longer complain.

It assented to a trial of the issues by the judge; thereby it waived the right to a jury trial; that oral waiver was entirely effective. Equitable Trust Co. v. Denver & R. G.Co., 250 F. 327, 162 C. C. A. 397., No special findings were requested; the alleged errors in the courge of the trial cannot be reviewed in this court. Law"v. U. S., 266 U. S. 495, 45 S. Ct. 175, 69 L. Ed. 401. , . Affirmed..