NATIONAL CITY BANK OF CHICAGO v. KIMBALL COMMERCIAL & SAVINGS BANK et al., 2 F.2d 461

HUNGER, District Judge. The plaintiff in error, a national bank of Chicago, brought suit against the Kimball Commercial & Savings Bank, a South Dakota corporation, hereafter called the Kimball Bank, and the members of its hoard of directors, to recover the value of their certificates of the capital stock of the Kimball Bank.

The plaintiff in error claimed it had acquired those certificates from Charles Máher as collateral security for an indebtedness of Maher to the plaintiff in error, and had no notice of any defect or irregularities in the issuance or sale of this stock, but relied upon the recitals on the face of the stock.

The plaintiff also alleged that the board of directors of the Kimball Bank had passed a resolution reciting that this stock had been acquired by Maher, at a time when he was president of the Kimball Bank, in return for some mortgage bonds of an Illinois coal-mining company that were worthless, that this issuance of slock was illegal, and declared that the stock was canceled. The plaintiff further alleges that this constituted a conversion of the shares of stock, and therefore asked for judgment for its value.

The defendants answered, denying the allegations of the complaint generally, hut admitting the certificates of stock were issued to Charles Maher, and averring they were issued without payment therefore on the statement of Maher that he wished to deposit stock of the coal-mining company as collateral security until he could pay the purchase price of the shares, and that in fact the coal-mining stock had no value.

The defendants admitted that the resolution canceling the stock had been passed, and asserted that by the laws of South Dakota the issuance of the shares of stock to Maher under the circumstances was illegal and void. A jury was impaneled and a large amount of testimony was' taken at the trial.

After the evidence had been presented, motions for directed verdicts were made on behalf of both plaintiff and defendant, and, upon a suggestion being made that tbe parlies might wish an extended period in which to prepare and file briefs, the parties stipulated orally that the jury should be waived and that the issues should bo submitted to the court. The jury was then discharged from further consideration of the issues. The court made its written findings and entered judgment therein more than a year after the jury was discharged.

The brief of the plaintiff in error does not comply with the requirements of rule 24 of the rules of this court, in that it does not set out any specification of errors, but an examination of the assignment of errors in the record discloses that the plaintiff in error claims that the court erred (1) in admitting evidence; (2) in excluding evidence; (3) in refusing to direet a verdict in favor of the plaintiff in error; (4) in making findings contrary to and unsupported by the evidence; and (5) in failing to make further findings of fact. , None of these assignments of error may be considered by this court, because, of the oral waiver of a jury trial made in this case.

As was said by this court in St. Louis S. W. Ry. Co. v. Com’rs of Road Imp. Dist. No. 2, 265 Fed. 524, 528: “Section 649, R. S. U. S. (Comp. St. § 1587), provides how the court below might try the case without the intervention of a jury, namely, ‘whenever the parties, or their attorneys of record, file with the clerk a stipulation in writing waiving a jury.’

Section 700, R. S. U. S. (Comp. St. § 1668), provides that certain questions can be considered by this court when it has been tried without a jury in accordance with

section 649. In the case at bar, neither the parties nor their attorneys of record filed a stipulation in writing with the clerk waiving a jury; but the court of its own motion withdrew the ease from the jury, and each party, without objection to such action of the court, presented findings of fact and conclusions of law to the court for its approval. The case, therefore, stands as a civil case at law tried by the court without any waiver of the jury as the law provides.

Where this is so, and. the facts are not admitted in a case stated, we have no jurisdiction to review any question on a writ of error, except those which arise on the process, pleadings, or judgment.” This rule has been often announced. Flanders v. Tweed, 9 Wall. 425, 429, 19 L. Ed. 678; Kearney v. Case, 12 Wall. 275, 283, 20 L. Ed. 395; Bond v. Dustin, 112 U. S. 604, 606, 607, 5 S. Ct. 296, 28 L. Ed. 835; Dundee Mortgage Co. v. Hughes, 124 U. S. 157, 160, 8 S. Ct. 377, 31 L. Ed. 357; Andes v. Slauson, 130 U. S. 435, 438, 9 S. Ct. 573, 32 L. Ed. 989; Spalding v. Manasse, 131 U. S. 65, 66, 9 S. Ct. 649, 33 L.

Ed. 86; Campbell v. United States, 224 U. S. 99, 105, 32 S. Ct. 398, 56 L. Ed. 684; Ford v. Grimmett (C. C. A.) 278 F. 140, 142; Bowers v. Henry Steers, Inc., 241 F. 377, 378, 154 C. C. A. 257; Rush v. Newman, 58 F. 158, 160, 7 C. C. A. 136; City of Cleveland v. Walsh Construction Co. (C. C. A.) 279 F. 57, 61, 63; United States v. National City Bank of New York (C. C. A.) 281 F. 754, 758; Wm. Edwards Co. v. La Dow, 230 F. 378, 383, 144 C. C. A. 520.

In substance, the argument made by plaintiff in error is that the evidence shows that the stock was paid for in cash by Maher when it was issued, and that it was acquired by plaintiff in error under circumstances that estop the defendants from denial of its validity. The determination of these claims requires a consideration of the evidence and of the inferences to be drawn therefrom, and they do not arise upon a case made, nor upon, the process, pleadings, or judgment, nor even upon the sufficiency of the findings to support the judgment, and hence the judgment must be affirmed.