Mission Marble Works v. Robinson Tile & Marble Co.

(after stating the facts as abov.e). Error is assigned to certain of tho findings of fact and the refusal of the trial court to make certain findings as requested by the plaintiff. The defendant denies the power of this court to review the findings of fact, and contends that where by a written stipulation a jury is waived and the cause is tried before the court *16 the- on-Iy .matters.' subject' to review in an appellate court are the rulings upon the admission of evidence.

It is true that in such a case there can be no review of findings of fact which depend upon conflicting testimony; But the rule of practice applicable here is stated by Judge Taft in Humphreys v. Third Nat. Bank (C. C. A.) 75 F. 852 , as follows: “When a party in the Circuit Court yaives a jury, and agrees to submit his ease to the court, it must be done in writing; and if he wishes to raise any question of law upon the merits in the court above he should request special findings of fact by the court, framed like a special verdict of a jury, and then reseiwe his exceptions to those special findings, if he deems them not to-be sustained by any evidence; and if he wishes to except to the conclusions of law drawn…