Dunlevy

(after stating the facts as above). [1, 2] Before considering the assignments of error, it is necessary to determine what questions are properly before this court for decision. The record discloses no findings of facts, either general or special, in accordance with sections 649-700 of the Revised Statutes (U. S. Comp. St. 1901, p.p. 525-570), and no requests for instructions. In the absence of findings by the trial court, inferences of facts to establish ultimate facts cannot be drawn by an appellate court from the testimony which may be found in the record. Norris v. Jackson, 9 Wall. 125 , 19 L. Ed. 608 ; W. L. Perkins Co. v. Von Baumbach, 185 Fed. 265 , 107 C. C. A. 371 ; Streeter v. Sanitary Dist. of Chicago, 133 Fed. 124 , 66 C. C. A. 190 ; Anglo-American Land M. & A. Co. v. Lombard, 132 Fed. 721 , 68 C. C. A. 89 . But the agreed statement of facts, so far as it sets forth ultimate facts as distinguished from evidentiary facts, may be considered as taking the place of special findings. Wilson v. Merchants Loan & Trust Co., 183 U. S. 121 , 22 Sup. Ct 55, 46 L. Ed. 113 . It follows that the stipulation as to the testimony which would be given by Joseph W. Gould, if called as a…

(dissenting).

I concur in the view that we cannot consider certain testimony contained in the record; and in the further view that the Pennsylvania court never acquired jurisdiction to try the “feigned issue.” But there being no averment of the actual or constructive delivery of the. instrument of assignment to *10 the defendant in error, or to another for her use, it is thought that the complaint fails to state a cause of action, and that the judgment should therefore be reversed. This question is entirely distinct from that of the sufficiency of the proofs to warrant a finding of delivery, which, as I understand, is the question discussed in the opinion.

But if the sufficiency of the complaint be assumed, I still think the judgment should be modified by deducting therefrom the amount of the Boggs & Buhl judgment, including interest and costs. It is conceded that this latter judgment was regularly entered in a suit, in which the Pennsylvania court had plenary jurisdiction, and that thereupon execution-garnishment process -was duly issued and properly served upon the plaintiff in error. In so far as concerns the amount of the garnishment claim, it was a cáse, therefore, falling…