Whittaker

In January, 1912, one Agnes Comerford, as administratrix of the estate of Thomas Comerford, deceased, commenced an action in the district court of the Fourth judicial district of the state of Montana, in and for the county of Missoula, against the James Kennedy Construction Company and the city of Missoula, a municipal corporation, to recover damages in the sum of $36,420 for negligently causing the death of her husband. Upon tho trial of the action, a verdict in the stun of $17,500 was returned in favor of the plaintiff and against the defendant James Kennedy Construction Company, and on. March 1, 1913, a judgment was entered upon this verdict. Thereafter the construction company served and filed notice of intention to move for a new trial; and on April 15, 1913, the court entered an order allowing 10 days within which to file a bond in the sum of $17,800 to stay execution. It was further ordered that execution be stayed during the 10 days, and, upon the filing of the bond as required, *456 that execution be further stayed until the motion for a new trial was disposed of or until the further order of the court, counsel being present and consenting thereto. Thereafter the…

(dissenting). The majority opinion seems to lose sight of the fact that the scope of the inquiry in this case is reduced to extremely narrow limits, for the reason that in the court below there was no written waiver of a jury trial, nor findings of fact, nor request for findings. When a law ease is thus tried before the court, the court acts as arbitrator, and its determination of questions both of law and of fact are conclusive upon the parties, and cannot be reviewed on writ of error. Campbell v. Boyreau, 21 How. 223 , 16 L. Ed. 96 ; Kearney v. Case, 12 Wall. 275 , 20 L. Ed. 395 ; County of Madison v. Warren, 106 U. S. 622 , 2 S. Ct. 86 , 27 L. Ed. 311 ; Bond v. Dustin, 112 U. S. 604 , 5 S. Ct. 296 , 28 L. Ed. 835 ; Erkel v. United States, 169 F. 623 , 95 C. C. A. 151 .

The assignments of error, with a single exception, are all directed to “findings” and “holdings” of the trial court upon the evidence in the case. The exception is the assignment that the court erred in ordering judgment to be entered on a cause of action not contained in the complaint, an assignment which has no basis in the record.

We are confined therefore to the consideration of errors of law apparent upon…