Edwards

This is a writ of error to review a judgment in favor of the defendants in an action at law, tried before the court without the intervention of a jury by written stipulation of the parties. The court made special findings of fact, and the sufficiency of these findings to support the judgment is not challenged. There was no motion or request at or before the. close of the trial to find generally for the plaintiff, or to make special findings in favor of the plaintiff, and there was no ruling of the court on that question. In this state of the record, it is well settled that an appellate court cannot consider the sufficiency of the testimony to support the findings.

In Dunsmuir v. Scott, 217 F. 200 , 133 C. C. A. 194 , we said: “The question whether or not, at the close of the trial, there is substantial evidence to sustain a finding in favor of one of the parties to the action is a question of law which arises in the progress of the trial. Where the trial is before a jury, that question is reviewable on exception to a ruling upon a request for a peremptory instruction for a verdict. Where the trial is before the court, it is reviewable upon a motion which presents that issue of…